Existing Indian Family

How is the Indian Child Welfare Act doing?

CILS Board member and law professor Cheyanna L. Jaffke examines ICWA’s present-day struggles with the doctrine known as the Existing Indian Family.  The abstract to her article entitled, Judicial Indifference: How Does the ‘Existing Indian Family’ Exception to the Indian Child Welfare Act Continue to Endure in the Age of Obama?appears below:

Even though Congress created the Indian Child Welfare Act (ICWA) over thirty years ago to preserve the relationship between tribes and their members, courts created, and some continue to use, the “existing Indian family” exception to avoid application of the ICWA to children and/or parents that the courts do not believe are Indian-enough for the ICWA. The continued use of the “existing Indian family” exception shows that there is either judicial laziness, indifference, or intolerance fueling the application of the “existing Indian family” exception and blemishes those states that choose to continue to apply it.

This article first discusses the need for the ICWA after a long period between the 1800s and the 1970s wherein United States policy was to attempt to assimilate American Indian children by removing 25-35% of all American Indian children from their American Indian homes and tribes and place them with non-American Indian families.

Next, the article sets forth the pertinent provisions and application of the ICWA and argues that the ICWA is still necessary because courts are seeking to remove American Indian children from their homes and place them with non-American Indian families.

The article next sets forth the “existing Indian family” exception, phoenix-like birth, death, and subsequent resurrection into United States law.

This article discusses the need to reject the “existing Indian family” exception because it ignores the plain language of the ICWA, perpetuates stereotypes and the assimilation of American Indians, ignores tribal interests, and provides inconsistency in the application of the ICWA.

Western State University Law Review, Vol. 38, No. 2, Spring 2011

CILS wishes to thank Cheyanna L. Jaffke for allowing us to re-print this article. Professor Jaffke teaches at Western State University, College of Law in Fullerton, California.


New Year

CILS wishes everyone a happy & safe 2012!


Foreclosure Crisis

Info for those with foreclosure issues


Foreclosures continue to affect large populations. The links below direct you to websites where you will find a variety of foreclosure-related information and services. Most services and resources are free.

http://www.keepyourhomecalifornia.org/ CalHFA Mortgage Assistance Corporation maintains a “Keep Your Home California” Program to assist low and modest-income familes stay in their homes. For homeowners whose mortgage servicing company has an agreement with CALHFA MAC (CAL HFA Mortgage Assistance Corporation). A homeowner cannot receive assistance through this program if their servicer has not signed an agreement with CalHFA MAC. Check on http://www.keepyourhomecalifornia.org/participating.htm for a list of participating servicers.

http://portal.hud.gov/hudportal/HUD?src=/topics/avoiding_foreclosure This is the main portal to the Department of Housing and Urban Development’s information to avoid foreclosure. Provides links and descriptions to various federal housing relief programs.

http://www.makinghomeaffordable.gov/ This site is maintained by the federal government and provides tools to assist homeowners in locating appropriate home loans. Contact information for the Department of Housing and Urban Development (HUD) loan counselors is also easily accessible from this site. Additional general mortgage resources and links are also available.

http://lawhelpca.org/ This premier and well-known website continues to provide Californians with both referrals and self-help resources in the areas of foreclosure prevention, homeownership and predatory lending.

For California tenants whose landlords are being foreclosed upon visit the Tenants Together foreclosure webpage.

Note: California is not participating in Department of Housing and Urban Development’s (HUD) Emergency Homeowner Loan Program (EHLP) Program.

In addition, Congress passed the “Helping Expedite and Advance Responsible Tribal Homeownership Act” (HEARTH). This law promises to reform Federal leasing requirements and encourage housing and community development in Native American communities. See National American Indian Housing Council’s website for more info.

Cultural Resources

What Should I Do if I Find Native American Human Remains, Artifacts, or Other Cultural Resources on My Private Property? (basic information for private landowners regarding their duties when locating Native American artifacts or human remains upon their property.)

This guide explains defines cultural resources and provides a summary of the law for landowners who find such cultural resources on their private property. The guide also provides additional reading resources and state goverment contact information.

For other information please see the California Native American Heritage Comimission’s website at: http://nahc.ca.gov/resources/understanding-cultural-resources/

Indian Taxation

1. State Income Tax and Native Americans. Provides a broad overview of common issues encountered by Native Americans with regards to California state income taxes.

This guide offers a broad overview of the current state taxation laws for individuals. Your individual circumstances must be taken into consideration before you can be sure that your income is exempt from state tax, so we cannot guarantee that the information in this guide will apply to your personal situation. The guide also contains a short explanation on the impact of the health care coverage laws upon individual income tax returns.