(Cite
as: 179 Misc.2d 96, 682 N.Y.S.2d 565)
Family
Court, Genesee County, New York.
In
the Matter of the ADOPTION OF LINDA J.W.
Dec. 1, 1998.
**566 *97
Linda J.W., petitioner pro se.
CHARLES F. GRANEY, J.
The adoptive child in
the above proceeding has petitioned the Court for release of certain information
identifying her biological mother. The petitioner requests that the information
be forwarded directly and confidentially to the Enrollment Manager at
the Six Nations Reserve in Oshweken, Ontario, Canada to establish that
the petitioner is entitled to be enrolled as a member of the Clear Sky
Band of the Onondaga Indian Nation in Oshweken, Ontario, Canada. The Court
has before it the petition filed, letters from the Enrollment Manager
at Six Nations Reserve in Oshweken, Ontario, Canada, which indicate that
this information is required in order to establish eligibility for enrollment,
a signed consent form from the birth mother which indicates that she has
no objection to the release of this information, the statement of the
birth mother that both the petitioner's birth father and the birth mother's
legal husband at the time of the birth of the child are deceased, the
original adoption record, and portions of the file of the Niagara County
Department of Social Services which had custody and guardianship of the
petitioner at the time of the adoption. Both the petitioner and the birth
mother appeared in this matter.
The petitioner was born
in Niagara County, New York, and has lived in New York State during her
entire life. She was adopted in 1963 in this Court. Her adoptive parents
are enrolled in and reside on the Tonawanda Indian Reservation in
Basom, New York. Petitioner's biological mother, who appeared in this
matter and who consented to the release of this information, resides in
Niagara County, New York, but is enrolled in the Clear Sky Band of the
Onondaga Indian Nation in Oshweken, Ontario, Canada.
*98
Petitioner indicates that she is an Indian person who is entitled to have
this information released under the provisions of the Federal Indian Child
Welfare Act of 1978 (25 USC 1901 et seq.). The Court must first consider
whether the petitioner is an Indian person for the purposes of the Indian
Child **567
Welfare Act. ICWA 1903(3) defines Indian as "any person who is a
member of an Indian tribe". ICWA 1903(8) defines Indian tribe as:
"any
Indian tribe, band, nation, or other organized group or community of Indians
recognized as eligible for the services provided to Indians by the Secretary
because of their status as Indians".
The petitioner indicates
that she is a member of the Clear Sky Band of the Onondaga Nation in Oshweken,
Ontario, Canada. The Clear Sky Band of the Onondaga Nation at Oshweken,
Ontario, Canada is not a band or tribe eligible for services provided
to Indians by the Secretary because it is a band which is registered in
Canada, not the United States. The remaining question is whether the petitioner
is eligible for relief under the ICWA because she is a member of the larger
Onondaga community, whose New York members are eligible for
and do receive such services. The question is whether there is a sufficient
historical connection between the Onondaga Nation in New York and the
Onondaga Nation in Ontario to consider that the petitioner is a member
of a continuous community which transcends "international borders"
and is therefore an Indian person for purposes of relief under the ICWA.
It is not difficult to
recall that all the land of Western New York and southern Ontario was
once under the control of the Six Nations, of which the Onondagas are
one member nation. The border which separates Canada from the United States
is a product of the post-Revolutionary War division of this area of land
between Great Britain and the American Colonies, and this border has been
subsequently adopted and ratified by the United States and Canada. The
existence of this border has no effect on the community of the Six Nations
which lived across this land long before the imposition of this border,
and who continue to maintain a posture of sovereignty even while they
are surrounded on all sides by the governments of the United States and
Canada. This continuity of the Six Nations community is recognized by
the United States and Canada in the right of free and uninhibited passage
of people and goods across the United States/Canada border which is granted
to the Six Nations under the Jay Treaty. The Six Nations *99
continues to assert claims to land across this area, and considers itself
a single and continuous community. Thus, it is this Court's conclusion
that the petitioner, as an Onondaga, is a member of a community which,
in those bands registered in New York, is eligible for services provided
to Indians by the Secretary because of their status as Indians, and is
therefore an Indian person for purposes of the Indian Child Welfare Act.
New York law requires
that a petitioner demonstrate "good cause" to open adoption
records (Domestic Relations Law, Section 114). To determine whether the
petitioner in this case has demonstrated good cause, the Court must further
consider the effect of the Federal Indian Child Welfare Act (25 USC 1901
et seq.). ICWA 1917 specifically requires that:
"Upon
application by an Indian individual who has reached the age of eighteen
and who was the subject of an adoptive placement, the court which entered
the final decree shall inform such individual of the tribal affiliation,
if any, of the individual's biological parents and provide such other
information as may be necessary to protect any rights flowing from the
individual's tribal relationship."
ICWA § 1923 extends
provisions of the ICWA to both adoptions completed subsequent to the effective
date of the ICWA and to subsequent proceedings in adoptions of Indian
children which were completed prior to the effective date of the ICWA.
Petitioner's request to release information from a sealed adoption record
is a subsequent proceeding under the ICWA (see, Matter
of Rebecca,
158 Misc.2d 644, 601 N.Y.S.2d 682 [Surr. Ct., Rensselaer Co., 1993] ).
Having established that she is an Indian person for purposes of the
ICWA and that she is entitled to relief under ICWA 1917, petitioner has
established good cause to release of the requested information as a matter
of law.
Petitioner, through her
own efforts, has located her birth mother, who appeared and consented
orally and in writing to the release of this information to the Enrollment
Manager **568
at Six Nations Reserve, Oshweken, Ontario, Canada. In her signed consent,
she also indicated that the petitioner's birth father and the birth mother's
legal husband at the time of the petitioner's birth, are deceased. There
are, therefore, no objections to the release of this information.
Accordingly, the petition
is granted, and the requested information shall be released to the Enrollment
Manager at Six Nations *100
Reserve, Oshweken, Ontario, Canada, in order to facilitate the enrollment
of the petitioner in the Clear Sky Band of the Onondaga Nation.
179 Misc.2d 96, 682 N.Y.S.2d
565, 1998 N.Y. Slip Op. 98696
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