Turtle Talk

Here: ICT Facing the Future Review

The text (from ICT):

Copyright Indian Country Today Mar 10, 2010
Review . . .

‘Facing the Future: The Indian Child Welfare Act at 30’ edited by Matthew L.M. Fletcher, Wenona T. Singel, and Kathryn E. Fort

Through the generations, the attempted annihilation of Native families and tribal communities left legacies of survival and resistance, but some of the most persistent practices of colonialism linger, as this book reminds us.

Several of the authors cited in this collection of 12 essays take the U.S. sharply to task for the cultural damage left in the wake of generations of Native children removed from their homes and placed with non-Native people or institutions up to the present day.

“The long history of injustices against indigenous peoples of the Americas is well documented,” notes Professor Lorie M. Graham, Suffolk University Law School. “For purposes of the Indian Child Welfare Act, the relevant historical point would be what one scholar has referred to as the ‘Native American holocaust of the nineteenth century'” when Indian children were removed I from their homes.

At the same time, the editors remind us, today, “Most Indian families, by far, are doing well as families, and their children are loved and nurtured.”

In this book, an outgrowth of a 2007 indigenous law conference at Michigan State University, 18 scholars, lawyers, tribal court judges, social workers, and other practitioners discuss ICWA, a law that places measures strengthening tribal sovereignty against sometimesstrident voices for states’ rights, racial “equality,” and competing, sometimes contradictory, legislation.

There’s some repetition in the book, but it is of material that bears repeating – a tragic past leading to a present in which, although great progress has been made, Indian children are at least three times more likely than children in general to be placed in foster care and 20 percent of Indian children are still being placed outside their families and tribes. There’s also acknowledgment that improvements continue to be made, and that with increased funding and stronger accountability ICWA will increasingly become a force for tribal development.

This collection notes that ICWA generally does not apply in custody disputes, but applies to adoptive and foster care placements of under 18, unmarried children who are members of or eligible for membership in federally recognized Indian tribes, as determined by those tribes, and, in the latter case, who are the natural children of Indian tribal members.

Adoptive placements under ICWA in state courts call for first choice to be with a child’s extended family, which may include non-Native members, then other members of the child’s family, and, after that, other Native families. Foster care placements are similar.

Although some would like to change the law to include Indian preference in child custody disputes, many of the collective complaints leveled at ICWA have come from two quarters – state court judges who believe the children in question never lived in an “existing Indian family or home” because of the distance from tribal lands or for other reasons, and provisions of the post ICWA Adoption and Safe Families Act.

The Existing Indian Family Exception – abandoned in at least 15 states, including Kansas, where it began – essentially allows state courts to define whether a particular child is an Indian, notes Professor Aliza G. Organick, Dine, of the Washburn University School of Law. The EIFE also “allows these courts to decide whether and to what degree a particular parent is Indian enough, and whether and to what degree an Indian family is Indian enough for ICWA to apply” instead of tribes’ rightfully making the determination.

B.J. Jones, chief judge for the Sisseton-Wahpeton Oyate Tribal Court, points out the ASFA can hinder the goals of ICWAs efforts at family reunification by deciding that, if a family is deemed incapable of changing as determined by rigid standards in federal and state law, the child is placed with another family as soon as possible to further the contemporary goal of “permanency,” perhaps at the cost of a culturally appropriate outcome.

The result of ICWA/ ASFA conflicts is critical to counter a history in which “permanency” was used to justify removing Indian children from their extended families and tribes, he said, noting of the late 19th century: “Probably never before in this country has there been such a concerted effort to transform a group of people by legally manipulating their children. Contemporary Indian children are the survivors of these policies of cultural degradation.”

At bottom, the authors suggest that no exercise of sovereignty is more important than asserting the right to ensure the preservation of nationhood through a nation’s children.

“While many attorneys and state courts focus on ICWA as a mechanism to protect tribal culture, Congress enacted ICWA, in part, to preserve tribal governments by assisting Indian tribes in keeping tribal children in tribal communities,” said Allie Greenleaf Maldonado, assistant general counsel for her tribe, the Little Traverse Bay Bands of Odawa Indians.

The collection covers a wide range of topics, from front-line social work to clashes between tribal and state courts to constitutional questions, issues of sovereignty and the international struggles of indigenous peoples. It depicts the incremental growth of ICWAs influence but it cannot fail to remind one that the U.S., after denying less savory parts of its past, also sometimes denies the need for remedy in the present.