TRIBAL PROGRAM NEWS
TCCD Project News
by Diane Henkels and Trish Carey
Greetings and Happy New
Year!
Criminal Law
Revisions
Project staff has put out a
second draft of the revisions to the
tribe’s Criminal Offense and Rules
of Criminal Procedure. The new
draft incorporates comments made
by tribal members and staff during
the round of community input.
We made changes throughout
the draft code, including alcohol,
tobacco, and drugs; disposition of
offenders (how to treat those found
guilty of violating the tribe’s
criminal law); provisions dealing
with peyote, including the criminal
provisions of the Domestic and
Family Violence Ordinance;
organizing the draft code by
grouping major crimes together and
creating a section specifically for
offenses against the family. Like all
the provisions, the policy
statements found at the beginning
of each part of the draft code also
are up for review.
Family Welfare
Code
In addition, project staff are
working on a Family Welfare Code.
This code will include several tribal
laws already in existence, including
the Garnishment Ordinance, the
different provisions of the juvenile
code, foster home standards, name
change, domestic and family
violence. We are including in the
first draft a draft on juvenile justice,
and a draft domestic relations.
Besides compiling these laws
in one comprehensive code and
adding a few new sections, the
project will revise certain sections
of existing code to reflect changes
in tribal services relating to family
welfare. For example, the juvenile
code sections will be amended to
address a 4E agreement with the
state of Oregon that funds foster
care as provided for by federal law.
ICWA
In the last few issues of Siletz
News, we showed how the tribe’s
criminal law is subject to the Indian
Civil Rights Act. Similarly, the
Indian Child Welfare Act, known
as ICWA (pronounced “ickwaa”)
(25 U.S.C. §§ 1901-1933) is an
important federal law that applies
to Indian people, specifically,
Indian children and their families.
ICWA reinforces the exercise
of tribal sovereignty. The
underlying premise of ICWA is that
Indian tribes, as sovereign
governments, have a vital interest
in any decision on whether Indian
children should be separated from
their families. Indian tribes have a
legitimate interest in preserving and
protecting the Indian family as the
wellspring of its own culture.
The purposes of the tribe’s
Constitution express a similar goal:
“Promote our cultural and religious
beliefs and to pass them on in our
way to our children, grandchildren,
and grandchildren’s children
forever.”
A recognized expert on the
Indian Child Welfare Act, Craig
Dorsay, wrote a chapter on ICWA
in the book “Child Custody and
Visitation, Law and Practice” and
includes background and policy. In
1968, the year the Indian Civil
Rights Act was enacted, the federal
government began a survey of the
Indian child custody problem.
Congress found that an
alarmingly high percentage of
Indian families were being broken
up by the often unwarranted
removal of their children by non
Indian public and private agencies,
and that these Indian children were
generally being placed in non
Indian homes. Approximately 85
percent of Indian children in foster
care were living in non-Indian
homes and 90 percent of non
related adoptions of Indian children
were made by non-Indian couples.
Standards applied to foster
care or adoptive parents were
discriminatory and made it virtually
impossible for most Indian couples
to qualify as foster or adoptive
parents because they are based on
middle-class values. These children
had to cope with problems of
adjusting to a social and cultural
environment much different than
their own.
Three policies were expressly
incorporated into ICWA to protect
the best interests of Indian children
and promote the stability and
security of Indian tribes and
families: establishing minimum
federal standards for the removal of
Indian children from their families,
placing Indian children in homes
that reflect the unique values of
Indian culture, and providing
assistance to Indian tribes in the
operation of child and family
service programs.
Both the tribal court and the
child and family service program
play important roles in Indian child
protection under ICWA. For
example, ICWA provides that an
Indian tribe has exclusive
jurisdiction over child custody
proceedings if the Indian child lives
on the tribe’s reservation or if the
child is a ward of tribal court.
Also, the state must give full
faith and credit to all tribal court
orders and judgments given
according to ICWA. This means
that any state court, including
Oregon state courts, must recognize
Siletz Tribal Court orders and
judgments pertaining to Indian
child welfare the same as they
would any other state court orders
and judgments.
Also under ICWA, the
objective of every Indian child and
family service program is to prevent
the breakup of Indian families and,
in particular, to ensure that the
Siletz Tribal
Court and
Code
Development
permanent removal of an Indian
child from the custody of his parent
or Indian custodian is a last resort.
ICWA sets strict rules, which
the Siletz ICW Department
must follow.
The purpose of the CTSI
Family Welfare Code is to provide
the written legal framework for
Tribal Court, the tribe’s ICW
Department, Tribal Police, and
tribal membership, as represented
by Tribal Council, to work together
to protect the interests of the tribe
and the tribe’s families. We thank
you for your comments so far and
hope to have more in the next few
months as drafts come out for
public comment.
The most recent drafts may be
found in project binders in each area
office and in the lunchroom of the
tribal administration building. Also,
copies may be obtained by request
from
project
staff
at
1-800-922-1399, ext. 212, or
541-444-8212, or e-mail Diane
Henkels (dianeh@ctsi.nsn.us) or
Trish Carey (trishc@ctsi.nsn.us).
Finally, we welcome Julee
Welch, who began her work as the
project law clerk in early January.
Julee also is a third-year student
at Northwestern School of Law
in Portland.
Siletz Tribal
Court and
Code
Development