Post by Okwes on Sept 24, 2007 8:41:39 GMT -5
SEMINOLE TRIBE Court rejects Seminoles' effort to raise boy The Seminole
Tribe of Florida lost its bid to take custody of a 4-year-old boy now
living in a medical foster home in a ruling by an appellate court. BY
CAROL MARBIN MILLER
Breaking new ground for Florida courts in cases involving the welfare of
American Indian children, an appeals court ruled Wednesday that the
''best interests'' of a seriously ill half-Seminole child outweigh the
Seminoles' desire to raise him within the tribe's culture and
traditions.
The Fourth District Court of Appeal in West Palm Beach ruled that the
4-year-old boy, identified only as K.D., must remain with a non-Indian
family that has cared for him since birth in a medical foster home. The
eight-page decision affirmed a 2006 ruling by Broward Circuit Judge Hope
Bristol.
The ruling allows Bristol to set aside provisions of the Indian Child
Welfare Act, a federal law that gives American Indians great preference
over non-Indians when deciding who should raise a Native American child
taken into custody by state child-welfare administrators.
In K.D.'s case judges had to weigh two competing interests: the state's
desire to protect a child whose medical needs are so great that
child-protection workers said he needs to live with a family specially
trained and equipped to care for him, versus the Seminoles' desire --
and right -- to raise him as a member of their tribe.
TRIBE MAY APPEAL
The Seminole Tribe of Florida, which has a reservation in Hollywood, was
saddened by the ruling and will consider appealing it to the Florida
Supreme Court, said the tribe's attorney, Donald A. Orlovsky of West
Palm Beach.
The child welfare act ''was passed largely to prevent the gutting of
tribes by taking tribal children away one child at a time,'' Orlovsky
said. ``Tribal society is something that is precious and needs to be
preserved. This is a tribe that has existed hundreds of years; it exists
for its progeny.''
Al Zimmerman, a spokesman for the Department of Children & Families in
Tallahassee, said the agency joined with the Guardian-ad-Litem Program
in Fort Lauderdale to keep the little boy in the foster home ``because
we want what's best for the child.''
''If the trial court and the district court of appeal believe that
what's best for the child is to remain in the medical foster care home,
then we support that decision,'' Zimmerman said.
Passed by Congress in 1978, the child-welfare act requires that American
Indian children sheltered by child-protection workers due to abuse or
neglect be raised by members of their tribe or culture unless there is
''good cause'' to do otherwise.
''The fundamental presumption had been that Native children were better
off with white parents than with red parents,'' said Terence Gurley, a
legal services attorney on the Navajo reservation in Window Rock, Ariz.
Reasons for granting custody to a non-Native include ''the extraordinary
physical or emotional needs of the child, as established by testimony of
a qualified expert witness,'' according to guidelines from the federal
Bureau of Indian Affairs.
UNUSUAL
James Keedy, the director of Michigan Indian Legal Services, said the
act is unusual among child-welfare laws in that it places the interests
of an American Indian tribe in self-preservation nearly on par with the
interests of individual Indian children.
''The best interests of the child,'' Keedy said, ``are defined as having
contact with his or her tribe, with having a continuing relationship
with his or her tribe.''
Wednesday's opinion, written by Judge Barry J. Stone, says that Bristol
did not abuse her discretion when she found that K.D.'s special needs
were the kind of extraordinary circumstances that would allow her to
leave K.D. with a non-Seminole family over the objections of the tribe.
BOY'S PARENTS
K.D., the son of a Sioux mother and Seminole father, was born about two
months early and tested positive for cocaine. He was diagnosed with a
host of ailments, including chronic lung disease, respiratory distress
syndrome, retinopathy, gastroesophageal reflux and vocal-chord
paralysis.
Bristol's original intention was to reunite K.D. with his mother, a goal
the Seminole tribe shared, the ruling says. But the boy's mother
relapsed in her drug treatment in September 2005, and the Seminoles
sought to give custody of K.D. to a tribal family. The family,
identified as the ''Q family,'' are cousins of the boy's father, who is
unable to raise him.
`A NEED TO IDENTIFY'
Bristol's ruling said K.D. ''had a need to identify with his tribe'' and
should be encouraged to participate ''in as many tribal functions and
ceremonies as possible,'' Wednesday's order says.
But Orlovsky said such a compromise will do little to imbue the boy with
a sense of his tribal identity.
''The only way this young man can be inculcated, truly, with the
Seminole traditions and culture is by being a part of the Seminole
tradition and culture personally -- by communicating elder-to-younger,
by participating in rites of passage which exclude white society,''
Orlovsky said.
Gurley, attorney for the Navajo tribe, said there is a long history of
white social workers misunderstanding Indian cultures -- and Indian
children suffering as a consequence. ''Sometimes,'' he said, ``the real
issue is: Is this being looked at by white eyes or Indian eyes?''
Tribe of Florida lost its bid to take custody of a 4-year-old boy now
living in a medical foster home in a ruling by an appellate court. BY
CAROL MARBIN MILLER
Breaking new ground for Florida courts in cases involving the welfare of
American Indian children, an appeals court ruled Wednesday that the
''best interests'' of a seriously ill half-Seminole child outweigh the
Seminoles' desire to raise him within the tribe's culture and
traditions.
The Fourth District Court of Appeal in West Palm Beach ruled that the
4-year-old boy, identified only as K.D., must remain with a non-Indian
family that has cared for him since birth in a medical foster home. The
eight-page decision affirmed a 2006 ruling by Broward Circuit Judge Hope
Bristol.
The ruling allows Bristol to set aside provisions of the Indian Child
Welfare Act, a federal law that gives American Indians great preference
over non-Indians when deciding who should raise a Native American child
taken into custody by state child-welfare administrators.
In K.D.'s case judges had to weigh two competing interests: the state's
desire to protect a child whose medical needs are so great that
child-protection workers said he needs to live with a family specially
trained and equipped to care for him, versus the Seminoles' desire --
and right -- to raise him as a member of their tribe.
TRIBE MAY APPEAL
The Seminole Tribe of Florida, which has a reservation in Hollywood, was
saddened by the ruling and will consider appealing it to the Florida
Supreme Court, said the tribe's attorney, Donald A. Orlovsky of West
Palm Beach.
The child welfare act ''was passed largely to prevent the gutting of
tribes by taking tribal children away one child at a time,'' Orlovsky
said. ``Tribal society is something that is precious and needs to be
preserved. This is a tribe that has existed hundreds of years; it exists
for its progeny.''
Al Zimmerman, a spokesman for the Department of Children & Families in
Tallahassee, said the agency joined with the Guardian-ad-Litem Program
in Fort Lauderdale to keep the little boy in the foster home ``because
we want what's best for the child.''
''If the trial court and the district court of appeal believe that
what's best for the child is to remain in the medical foster care home,
then we support that decision,'' Zimmerman said.
Passed by Congress in 1978, the child-welfare act requires that American
Indian children sheltered by child-protection workers due to abuse or
neglect be raised by members of their tribe or culture unless there is
''good cause'' to do otherwise.
''The fundamental presumption had been that Native children were better
off with white parents than with red parents,'' said Terence Gurley, a
legal services attorney on the Navajo reservation in Window Rock, Ariz.
Reasons for granting custody to a non-Native include ''the extraordinary
physical or emotional needs of the child, as established by testimony of
a qualified expert witness,'' according to guidelines from the federal
Bureau of Indian Affairs.
UNUSUAL
James Keedy, the director of Michigan Indian Legal Services, said the
act is unusual among child-welfare laws in that it places the interests
of an American Indian tribe in self-preservation nearly on par with the
interests of individual Indian children.
''The best interests of the child,'' Keedy said, ``are defined as having
contact with his or her tribe, with having a continuing relationship
with his or her tribe.''
Wednesday's opinion, written by Judge Barry J. Stone, says that Bristol
did not abuse her discretion when she found that K.D.'s special needs
were the kind of extraordinary circumstances that would allow her to
leave K.D. with a non-Seminole family over the objections of the tribe.
BOY'S PARENTS
K.D., the son of a Sioux mother and Seminole father, was born about two
months early and tested positive for cocaine. He was diagnosed with a
host of ailments, including chronic lung disease, respiratory distress
syndrome, retinopathy, gastroesophageal reflux and vocal-chord
paralysis.
Bristol's original intention was to reunite K.D. with his mother, a goal
the Seminole tribe shared, the ruling says. But the boy's mother
relapsed in her drug treatment in September 2005, and the Seminoles
sought to give custody of K.D. to a tribal family. The family,
identified as the ''Q family,'' are cousins of the boy's father, who is
unable to raise him.
`A NEED TO IDENTIFY'
Bristol's ruling said K.D. ''had a need to identify with his tribe'' and
should be encouraged to participate ''in as many tribal functions and
ceremonies as possible,'' Wednesday's order says.
But Orlovsky said such a compromise will do little to imbue the boy with
a sense of his tribal identity.
''The only way this young man can be inculcated, truly, with the
Seminole traditions and culture is by being a part of the Seminole
tradition and culture personally -- by communicating elder-to-younger,
by participating in rites of passage which exclude white society,''
Orlovsky said.
Gurley, attorney for the Navajo tribe, said there is a long history of
white social workers misunderstanding Indian cultures -- and Indian
children suffering as a consequence. ''Sometimes,'' he said, ``the real
issue is: Is this being looked at by white eyes or Indian eyes?''