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The Opinion case is Jude M., Appellant versus State of Alaska Department of Health & Social Services, Office of Children’s Services, Appellee by the Supreme Court of the State of Alaska.
The leading question was whether a long term Guardianship is more like a foster care placement or a termination of parental rights. It was affirmed legal Guardianship was deemed more similar to a foster care placement and therefore, required the testimony of a “qualified expert witness.” However, the reach of the court’s opinion is limited by the legal framework of ICWA.
My analysis in “An Alternative to the Indian Child Welfare Act” is still valid. First and foremost, voluntary legal Guardianship is an alternative to ICWA (when the court has not yet assumed ANY jurisdiction over the child) and ICWA is not triggered in cases “that do not operate to prohibit the child’s parent or Indian Custodian from regaining custody of the child upon demand.” For all intents and purposes, the court stepped into the father’s parental shoes, effectively super-ceding his parental rights which allowed the court to order the legal Guardianship placement.
The child was found to be an Indian child by the definition of the Indian Child Welfare Act (ICWA). “Father appealed a Superior Court order that granted long-term Guardianship of his daughter to maternal relatives in another state.” Office of Child Services (OCS) petitioned to terminate the father’s parental rights in August 2012 for essentially child abuse and by April 2014, five of the six elements required for termination had been found. While the court didn’t terminate, it was nevertheless de facto termination. The lower court had found the father’s parental rights had been effectively “suspended” because of the child’s status as needing legal intervention and the father was not allowed to have unsupervised contact under the terms of his probation. By that point, there was no negotiating or demanding that his child be returned to his custody.
What is most important to note is that there is a clear history of state intervention. The court essentially found that it had sufficient jurisdiction over the child to allow the court to act within a quasi-parental role. If a voluntary legal Guardianship had already been in effect, the state could not take legal custody.
There is an interesting, unpublished Indian Custodian case out of California deserving special attention. In Riverside County Department of Public Social Services versus J.B. the mother, a member of Citizen Potawatomi Nation claimed she had transferred custody of her minor children to the paternal Grandmother (prior to the state taking jurisdiction over the children). California State Welfare Department was seeking to terminate the mother’s parental rights.
Citizen Potawatomi Nation had created a custodial status called Indian Custodian and the procedure to establish it. As a result of the conflicting information from the Grandmother and Mother regarding which party actually had (legal) control over the minor children, DSS argued that the status of Indian Custodian had not been conferred. As a result of that uncertainty, the state’s jurisdiction was triggered and child removal from the home occurred. In fact, the only problem that the court had with the Indian Custodian status was the lack of evidence or writing to confirm its legitimacy.
I am available for consultation and would like to share more about my findings upon request. Helen Nowlin, Attorney and CEO Educational Family Estate Apps.
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https://www.smashwords.com/books/view/660130 (American Indian Probate Reform Act Legal Guide)
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A court case from the 10th Circuit addresses fraud and fraudulent “purported” conveyances of American Indian allotment lands in which the court held:
The Begay and Mrs. Cecil Navajo allotments were still held in trust by the United States, pursuant to the provisions of the General Allotment Act,, et seq. (1976). We agree.
Then in U.S. v. Mottaz, 476 U.S. 834 (1986), the Court found that 25 U.S.C. Section 345 applies more when an original allotment is the subject matter and when the claim is brought forth when there is lawful entitlement by virtue of any Act of Congress. “The structure of § 345 strongly suggests, however, that § 345 itself waives the Government’s immunity only with respect to the former class of cases: those seeking an original allotment.” In fact, Section 345 has been used in many cases to bring quiet title actions against private parties other than the federal government. From the case text, there are two ways types of jurisdiction available to a federal District Court under Section 345 and the most important is when ii) proceedings are “in relation to” the claimed right of a person of Indian descent to land that was once allotted.
Interesting to note that 28 U.S.C. Section 2415, as laid out under sub part (c) does not bar commencement of actions when the it involves establishment of title to, or right of possession of, real or personal property. In the fraudulent land sales during my Grandmother Susie’s probate (within five months of each other by Theresa Robinson and Josephine Brown Graham) and against my father’s rights as the only surviving heir and a child at the time, Congressional land restrictions were not removed by the Secretary of Interior and neither could the District Court of Oklahoma take its proper jurisdiction.
Indian land theft was prevalent and pervasive as my research uncovered in “Deceit in Oklahoma: https://www.linkedin.com/pulse/deceit-oklahoma-helen-nowlin. Don’t leave things to chance. Ensure your Last Will and Testament is properly cared for by trustworthy people to ensure your wishes are honored!
I want to share with people why voluntary legal guardianship is the best way to circumvent state jurisdiction. Why should anyone want to try to make I.C.W.A. work when it doesn’t? Any parent whether native or not will benefit from having this information, too.
In times like these when we are observing a heightened degree of a militarized police state (https://secure.everyaction.com/PUTZciBozU-yksXg_duOpQ2), please, don’t leave the children vulnerable!
I have additional thoughts about this and how tribal governments can play a greater role in the lives of their members by securing access to legal education like to my online legal Guide Service. Some of this discussion is available under the Products tab on my website. I am available for consultation. Help me to spread the word (on WordPress)!
Helen Nowlin, Attorney and CEO
For many Americans, standing up for their rights in a civil court proceeding is made much more difficult by a general lack of understanding of the complicated processes, and by an inability to pay for legal counsel to help.
“I consider it a social justice matter,” Glenoma attorney Helen Nowlin said.
Check out my “other” Blog on my website, http://www.educationalfamilyestateapps.com. I also have a FB page under that same name with a focus on environment and family related topics.
Helen Nowlin, Attorney and CEO
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Every one needs this information. Why are people going without or avoiding even the investigation of these important topics? The answer is not what you may think. One person had this to say:
“I have read that the lack of Living Trusts among middle class / low SES families is due to lack of affordability and is an area that needs addressing for the benefit of individuals and society. There is much unnecessary probate court costs for families and community that is avoidable. Why do we provide judges and courts as a public expense, but not legal services to avoid court for such things?”
Educational Family Estate Apps was created as a response to this vast unmet need for legal education and social justice. At this time, there are two well – prepared (#LegalGuides). There is substantial savings to be found when you buy them for your mobile devices (as compared to the subscription price off our website).
Announcement about the release of the American Indian Probate Reform Act Legal Guide with a model Last Will and Testament is coming very soon!
Helen Nowlin, Attorney and CEO
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Come along and get the tools that every parent or every grandparent needs! Spread the word.
Have you ever wondered whether you have all the knowledge you need to best give family protection to those you love? No one has all the knowledge. Even updates to knowledge are necessary. That can be a costly proposition.
With the national average of $285 per hour for attorney time, it is not always affordable or an option. Our legal Guides are meant to allow people to be informed until they can afford to hire a lawyer. Educational Family Estate Apps is an affordable option that provides a professional product with the depth of information you need – to place your mind at ease about your family’s future and security.
Read more at http://educationalfamilyestateapps.com/2016/06/21/family-protection/.