Summer 1999

judge

Native American Legal Briefs
--Tribal Sovereignty--
--Civil Rights--
--Custody of Aboriginal Child--

First Circuit Court of Appeals rules firing of community health nurse an "internal tribal matter"

Superior Court issues Consent Orders to prevent harassment of Passamaquoddy students at Lee Academy

Supreme Court of Canada awards custody of aboriginal child to adoptive, non-native grandparents

Representation of Third Parties in ICWA proceedings

decoration  First Circuit Court of Appeals rules firing of community health nurse an "internal tribal matter"

In January, 1999, the First Circuit Court of Appeals reversed a Maine Federal District Court ruling over the firing by the Penobscot Nation of Cynthia Fellencer, a community health nurse. Ms. Fellencer had argued that her firing was discriminatory and that she should be allowed to present her case to the Maine Human Rights Commission without having to go to Tribal Court. The First Circuit agreed with the Nation on appeal and found that the firing was an "internal tribal matter" within the meaning of the Maine Indian Claims Settlement Act. This means that Ms. Fellencer's case cannot be heard by the Maine Human Rights Commission.

Ms. Fellencer has asked the United States Supreme Court for a Writ of Certiorari to review the First Circuit decision. If the Writ is granted, the case will be decided by the Supreme Court. If the Writ is denied, the First Circuit decision will stand. In that case, Ms. Fellencer will not be able to take her case to the Commission.

This case has had a lengthy history, beginning when the Nation first fired Ms. Fellencer in 1994. Earlier rulings by the Federal District Court and the Maine Superior Court have been detailed in prior editions of this Newsletter. (See Vol. 1, Issue 1 and Vol 2, Issue 2, or check our website .  For an in depth discussion on Tribal Sovereignty issues in Maine, see Mark Chavaree's article in Vol 2, Issue 1.)

Briefly, Ms. Fellencer, a non-Indian, was hired by the Penobscot Nation in 1992 as a community health nurse. The Tribal Council voted to fire her in 1994. Ms. Fellencer decided not to take her case to Tribal Court. Instead, she went to the Maine Human Rights Commission, stating that she had been fired because of her race and national origin. The Commission dismissed her complaint, believing that her firing was an internal tribal matter and that the Commission had no jurisdiction. The case then went to the Maine Superior Court and Federal District Court. Both times, the courts ruled in Ms. Fellencer's favor.

The First Circuit disagreed with those Courts. The Circuit Court noted that the relationship between the Nation and the State of Maine is controlled by the Maine Indian Claims Settlement Act and its companion, the Maine Implementing Act. Under those Acts, when the Nation acts on "internal tribal matters," its actions cannot be regulated by the State of Maine. The question facing the Court, therefore, was whether the firing of a public health nurse by the Penobscot Nation was an internal tribal matter.

In deciding that the Nation's actions were an internal tribal matter, the First Circuit looked at a number of factors. The Court first referred to an earlier decision, Akins v. Penobscot Nation. The Court noted that the Akins decision described five considerations which were used in that case to decide whether something should be treated as an internal tribal matter. The Court in this case decided that the Akins considerations were not an "essential test" for deciding whether something was an internal tribal matter. Rather, the Court treated the Akins considerations as only one aspect to be looked at in this case.

The issues that the Court in this case decided were the most important were (a) any interest the State of Maine might have in this case, (b) what Indian Law was understood to be before the adoption of the Settlement Act (the Court called this "prior legal understandings"), and (c) the nature of Ms. Fellencer's position.

The Court decided first that the State did not have an interest in this case. Normally, the State has a strong interest in protecting all employees against discrimination. In this case, however, the Court found that the State had not even tried to apply its laws to the Nation. In fact, the Maine Attorney General had ruled some time ago that tribal government employment decisions of the Nation are not regulated by the State. Also, the State did not intervene in this case.

The First Circuit next looked at "prior legal understandings." First, the Court found that there has been a longstanding federal policy giving tribal employment a unique legal status. Second, the Court noted that the Indian Civil Rights Act forbids discrimination by Indian tribes. However, in order to allow tribes to govern themselves, Congress intended that discrimination cases involving Indians could be heard only in Tribal Courts. These two aspects of federal Indian common law were understood at the time that Congress passed the Settlement Act. The Court found, therefore, that these aspects of Indian law should be read into the Settlement Act's definition of internal tribal matters.

Finally, the Court looked at the nature of Ms. Fellencer's position itself. The position was funded by the Indian self-determination and Education Assistance Act of 1975. That Act includes an employment preference for Native Americans. The Court decided that this federal employment preference made an important difference. While cities and towns may not use this kind of employment preference in their hiring and firing decisions, the case is different within an Indian Tribe in Maine.

decoration Superior Court issues Consent Orders to prevent harassment of Passamaquoddy students at Lee Academy

In February of 1999, the Maine Attorney General's Office filed a complaint against two teen-aged boys in Lee for allegedly harassing Native American students at Lee Academy. Later that month, the Superior Court issued a Consent Order prohibiting the boys from harassing those students or their families. A Consent Order means that the two teen-agers charged agreed to the terms of the Order without going to a hearing. They did not admit, however, that the events outlined in the Attorney General's Complaint were true.

According to the Complaint, the two teen-agers, Jonathan Rhoades and Garnet Raymond, Jr., threatened a Passamaquoddy student after a fight broke out between the Passamaquoddy student and a white student. Jonathan Rhoades is a student at the Academy. Garnet Raymond, Jr. is not.

Later that morning, the two teen-agers allegedly parked in front of the school and pulled out a tire iron. At that point, an administrator at the school brought most of the Passamaquoddy students into a classroom for their protection. Later, the two teen-agers, with some other white male students, yelled at the Passamaquoddy students and demanded that they come outside and fight. Racist graffiti was allegedly discovered in the senior lounge.

At this time, a teacher began to drive the Passamaquoddy student home, along with another Passamaquoddy student. The teacher noticed that he was being followed by Rhoades and Raymond. When the teacher stopped at a store to buy lunch, Rhoades and Raymond allegedly followed them all inside and threatened the first Passamaquoddy student. The teacher and other adults in the store escorted the students outside and they drove away without further incident.

Out of concern for the safety of all the Passamaquoddy students, the administrators at Lee Academy sent the Passamaquoddy students home and closed the school early for all students.

Under the Consent Orders, Rhoades and Raymond may not enter the property of Lee Academy or either of the Passamaquoddy reservations without permission. They are also prohibited from assaulting or threatening any Passamaquoddy students or their families and from encouraging anyone else to assault or threaten Passamaquoddy students. Any violation of the Consent Order is a Class D crime punishable by up to one year in Jail and a fine of up to $2,000.

decoration Supreme Court of Canada awards custody of aboriginal child to adoptive, non-native grandparents

In February of 1999, the Supreme Court of Canada handed down a decision in a child custody case involving the young son of an aboriginal Canadian mother. The mother is a member of the Swan Lakes First Nation of Manitoba. For several years before the decision, the child had been living with his biological, aboriginal grandfather. The decision gave custody of the child to the mother's non-native, adoptive parents who live in Connecticut. The decision has deeply angered many in the Canadian aboriginal community.

According to Vice Chief Dennis White Bird, the Manitoba representative to the Assembly of First Nations in Canada, during the 1960's until the early 80's, the Canadian Government engaged in "exporting" First Nation children to the United States and Europe . Vice Chief White Bird called this policy "genocidal" and said that it resulted in "decimating our population." The Assembly of Manitoba Chiefs views this case as part of that policy. Vice Chief White Bird explained that the Assembly had been following the progress of this case for an extended period of time and has given its "moral support" to the biological grandfather as well as to the child.

The Supreme Court of Canada decision reinstated a lower court decision in British Columbia, where the trial court judge had ordered that custody be given to the Connecticut grandparents. The facts found by the trial court were as follows.

Nancy and Duncan Haimerl were a childless couple living in Montreal. They adopted two Aboriginal sisters, one of whom, Melissa, eventually became the mother of the child in question. A year later, the Haimerls moved to Connecticut.

Over the years, the trial judge found, Melissa had serious behavioral and psychological problems. As a result, she attended a series of state and local institutions for troubled children. In 1994, Melissa became pregnant with Ishmael and eventually moved back in with her adoptive parents. The possible father, who is African American, has denied paternity, although he has had some contact with the child.

Melissa cared for Ishmael at first. Then she started to disappear for two to three weeks at a time, leaving her adoptive parents to care for the baby. They established a strong bond with the baby over the period.

At about this time, Melissa, with the encouragement of her adoptive parents, contacted her birth parents, living in Vancouver. She visited them, staying for about 2½ months. She returned to Connecticut in the late summer of 1995. In November, Melissa took Ishmael and moved in with her birth father in Vancouver.

The Haimerls finally located Melissa and the baby. Ishmael was placed in foster care in British Columbia in mid-November of 1995. In February of 1996, however, an interim custody order in British Columbia awarded temporary custody to Melissa's birth father. Melissa has never asked that she be given custody of Ishmael. She has strongly supported her birth father's claim, however. Ishmael was in his birth grandfather's custody from March of 1996 until the Supreme Court of Canada's ruling on the case in February of 1999. Since the ruling, Ishmael has been returned to Connecticut, where he is today.

The trial judge looked closely at both parties asking for custody of the child. He found that both sets of grandparents loved the child and had bonded with him. The judge believed that both sets of grandparents would provide a home and care for the child. In settling on the Haimerls, however, the judge appeared to give great weight to the fact that the Haimerls could offer greater economic security and that they had promised to make Ishmael appreciate his cultural heritage.

The trial judge gave some consideration to the language of the Child and Community Services Act which states that "the cultural identity of aboriginal children should be preserved." He noted, however, that the child's heritage also included his African-American background. The judge concluded that

this is not a case of taking an aboriginal child and placing him with a non-aboriginal family in complete disregard for his culture and heritage. The fact is that Melissa is the daughter of [the Haimerls] and Ishmael is their grandson.

On appeal, the Court of Appeal for British Columbia reversed the earlier decision. The judge found that the trial judge had "placed undue emphasis on economic matters and underemphasized ties of blood and culture." The judge also gave weight to the fact that the child had been living with his biological grandfather for some two years. The Supreme Court decision reversed the Court of Appeal, but did not discuss the case in any detail.

Following the Supreme Court of Canada decision, the Sagkeeng First Nation, an intervenor in the case before the Court of Appeal, asked the Supreme Court to rehear the case on procedural grounds. The Court decided that no purpose would be served by reopening the proceeding.

NOTE: If you want to be represented as an interested third party in an ICWA proceeding concerning a child who is in your extended family or who is a member of your tribe, feel free to call Craig Sanborn of the Native American Unit. The number is 1-800-879-7463.