A place for Haudenosaunee to meet
|| Main Page | | Law Review Articles | | Case Briefs ||
The Baltimore County Public Schools rejected the admission of an Indian child on the basis the child's guardian was not in possession of a valid Maryland State Court Order of Custody. I intervened and explained to school officials tribal laws and customs and the ICWA of 1978.
The guardian was the child's older sister who was of legal age in Maryland (which really is not important because its the tribal custom which prevails) and was in possession of a legal notarized document where the mother voluntarily gave custody and guardianship to the older sister. The older sister and the minor child both appeared before school officials to enroll the child for the fall 1997 semester. The high school officials did not accept the notarized document and said only a order of custody from a court would be accepted. Except for the missing court order, the child otherwise would be eligible for enrollment.
I was contacted by the family and asked to help resolve the matter. I promptly contacted the Assistant Superintedent's office for student services and explained the situation. I was refered to Joe Noon of the Northeast division of "people services". Surprisingly Mr. Noon was very receptive of me and we promptly met within a few days to get the matter resolved. (I say surprisingly, because all too often Indian issues are trivialized and resented by others.)
Here is how I presented the ICWA of 1978 to defend the rights of tribal matters. There are three areas of law I will call them intra-tribal affairs, inter-tribal affairs, and extra-tribal affairs. Intra-tribal affairs encompass issues between Indian people of the same tribe that are resolved according to that tribe's customs and traditions. Inter-tribal affairs encompass issues between Indian people of different tribes that are resolved according to agreed upon or common customs and traditions or may be resolved by "English society" laws and courts using special "carve out" laws. Extra-tribal affairs are issues between an Indian person and a non-Indian person and are resolved by special carve out laws.
Since the adoption and custody of the minor child was contained within the same tribe then the State courts would not have jurisdiction in this strictly tribal matter. Even if the child was adopted by either an Indian of another tribe or by a non-Indian, the ICWA of 1978 gives the child's tribe exclusive jurisdiction over the case (1 ) since the mother did live with the tribe. Therefore, the Maryland State Court system would not have jurisdiction over such a matter which would prevent the family from obtaining a court order of custody to satisfy the public school system.
When I met with Mr. Noon, I explained how the law would not allow the family to obtain a Maryland Court Order. But I could possibly arrange for the tribe to send a letter to the school system stating they recognize the older sister as the child's guardian. I gave Mr. Noon a copy of the ICWA of 1978 (Public Law 95-608) as it was codified into the U.S. Code and he returned to his office armed with the information he needed to enroll the child.
The ICWA of 1978 precludes guardians from the same tribe as the Indian child from obtaining a Court Order of Custody from any State. Therfore the BCPS policy of admission prohibits the enrollment of Indian children under guardianship of someone other than the natural parents. However, since Federal law has precedence over state law (US.Const.Art.VI) the admission policy of the BCPS is invalid. The child is eligible for enrollment without a Court Order of Custody from the State.
Mr. Noon has also discussed the possibility of an in-service training topic on Indian issues which I have thankfully offered to help with. It is important to share and explain Indian affairs to others so they can better handle special circumstances for Indian people.
I would like to publicly state that I was impressed with Mr. Noon's professionalism, attention to the matter, and his diplomacy. He is a credit to the Baltimore County Public Schools.
If you have any comments or questions concerning the ICWA of 1978 I would be happy to help or at least point you in the right direction. Please keep in mind the information presented here is my personal advice, is not legal advice, and certainly I'm not a substitute for an attorney. My attorney made me say it! ;^)
The Baltimore County Public Schools required an applicant to apply as one of two races, "Black" or "White", based on a limitation of a computer program. I contacted the Assistant Superintendent of Human Resources to get the matter resolved. FACTS:
On October 6, 1997 an American Indian applied for the position of substitute teacher with the Baltimore County Public Schools. During the application process and fingerprint background check it became necessary to identify race. The applicant who was an enrolled member of a federally recognized tribe was given the choice of either "Black" or "White". The applicant had already notated an "I" on the Maryland Criminal Justice Information System (CJIS) fingerprint card for their race. The applicant was told by officials the computer only recognized two races and that the "I" would have to be changed to either "B" for black or "W" for white. The applicant was mixed blood possessing *some* European blood and opted for "W" but was rather incensed at the idea of being forced to take on the race for which they did not identify. I was contacted to resolve the problem.
I called the Assistant Superintendent of Human Resources for Baltimore County Public Schools and spoke with Carol in that office just before closing on the same day the applicant applied for the job. She was unable to offer an explaination but would check into it and promised to return my call the next morning. On the morning of October 7, 1997 the school system contacted me and said the application had been changed to reflect American Indian, and that the contractor handling the fingerprinting did not understand the ramifications of their actions.
The Equal Employment Opportunity Commission guidelines allows for several basic designations for reporting and statistical purposes. Under the Maryland CJIS guidelines, there are several racial designations as well. Both guidelines provide for the identification of American Indian for race. So the question raised by this incident is for what purpose was the data being collected; as EEO reporting statistics or for law enforcement identification purposes? Under either purpose both guidelines require officials to designate persons who have tribal documentation as American Indian. The Civil Rights Act and the EEOC Guidelines prohibits discrimination based on race and statistical collections for other purposes is not authorized.
The EEOC guidelines and/or the Maryland CJIS guidelines provides for the race designation of American Indian. So the collection of other racial groupings is not authorized by law or regulation and therefore the computer program must be modified to accommodate the guidelines.
The Assistant Superintendent of Human Resources office acted very quickly in resolving the matter to the satisfaction of the applicant. They showed concerned, cooperation, and respect. My hats off to them since they seem to be "taking a licking" recently. They just need to get the kinks out of the system, I guess.
Civil Rights Act of 1964, in general, and title VII of the same act creates the Equal Employment Opportunity Commission. (78 Stat. 241; 42 U.S.C.A. § 2000a)
The Baltimore County Public Schools did not accept for transfer credit coursework in a Native American language class given to an American Indian student transfering from a school on the Six Nations territories.
Client was referred to me for mediation from the Office of Indian Education, Baltimore City Public Schools and the Native American Education Program since it was outside the jurisdiction of city public schools. No other legal actions were filed or pending.
A student from the Mohawk Nation attending a public school in St. Regis territories was taught and received credit in a public school course for the Mohawk Indian language. During the summer the student relocated to Baltimore, Maryland. The student was admitted to a Baltimore County Public High School and the high school transcript was sent to Baltimore County Public Schools. The school system did not have a Mohawk Language course, and said they would not be able to accept the credit, except maybe as an elective. The student argued that, even though it is not a foreign language, the language course should still be accepted for credit and listed as a Native American language. The school system said normally "immigrant students" are not given credit for learning the language of their home country as a foreign language, however, they may receive foreign language credits for learning another language including English. By school policy the student's English credits could not be considered for the foreign language requirements since the sending school was located in an English speaking province of Canada.
1) Can official school credit in a Native American Indian language course be denied for transfer, if a similar course is not offered by the receiving school system?
2) Can a Native American Indian language be use to satisfy the foreign language requirements of a high school graduation?
3) Does it matter if a student learns as their first language the dominant society's language (in this case English), or their Native tongue when determining if the Native language can be given full academic credit the same way as a foreign language?
1) No, institutions receiving federal funds must accept the credit.
2) Yes, institutions receiving federal funds must recognize the credits as fulfilling foreign language entrance or degree requirements.
1) The Native American Languages Act2 requires all institutions receiving federal funds to "include Native American languages in the curriculum in the same manner as foreign languages."
2) The Native American Languages Act requires all institutions receiving federal funds to grant "recognition of such Native American language proficiency ... as fulling foreign language entrance or degree requirements."
3) Native American Languages Act states the language shall be given the same academic credit as a foreign language and does not distinguish between whether it may be learned as a first language or not.
Baltimore County Public Schools being a public institution receives federal funds. So the school system is bound by law to comply with the Congressional Act. And the Constitution holds where Federal law conflicts with local law or policy the federal law will prevail, US.Const.Art.VI. Therefore, the school's policy to deny the Native American language credit, to deny application for fulfilling the degree requirements, and for the policy denying credit as a foreign language if learned as a first language, is in violation of the Constitution and contrary to Federal law.
The student's credit in the Mohawk language course was accepted for transfer. Additionally, it will apply towards fulfilling foreign language requirements of graduation.
Working with the Foreign Languages office and Student Data office of Baltimore County Public Schools, a new separate listing titled "Native American languages" was established with four levels of proficiency. Native American languages I, II, III, and IV. It is hoped that future American Indian students transferring to Baltimore County will have an easier time getting their credit accepted for a Native language.
File Created: 25 September 2001
Last Modified: Wed, July 23, 2014 at 02:59 PM
Comments or browser problems with this page? Contact the
Copyright © 2001, John Wigle. All rights reserved. Any legal information provide on my pages are for informational purposes only and does not constitute legal advice. Please consult your attorney for the specific legal options of your case.