For the better part of two centuries, the cornerstone of federal Indian policy was destabilizing and eradicating tribal governments. In the process, federal Indian policy also dismantled American Indian families via child removal. Attempting to equalize American Indians through the practice of assimilation, decades of Indian child removal policies destroyed Indian families. In 1978, Congress responded to these horrors by passing the Indian Child Welfare Act (ICWA), a revolutionary law that was responsive to its trust responsibility to American Indian Tribes. By providing for the best interests of Indian children, heightened protections for parents of Indian children in certain child custody proceedings, and vesting Tribes with a legally recognizable interest in their children’s futures, Congress issued a referendum on equality for American Indians and the very nature of colonialism.
For nearly fifty years, ICWA has governed certain child custody proceedings involving Indian children in state courts. In 2018, a group of state and private actors decided to challenge ICWA’s constitutionality in Haaland v. Brackeen. Among their claims, these parties alleged that ICWA violated the equal protection rights of potential adoptive parents who are non-Indian and that ICWA placed Indian children at a disadvantage. However, just beneath the surface of these claims lies the real allegation: American Indian children should be available for the “good families” or for the “right kind of families” to adopt them. By claiming American Indians had special rights via ICWA, these plaintiffs hoped to re-introduce a version of equality that allowed generations of federal, state, and individual actors to enact assimilationist policies. Ultimately, the goal of equality in this area remains to ensure that “good families” maintain access to Indian children. Contrary to congressional goals, Indian children remain a commodity in demand for “good families” looking to save Indian children.
Blending family law, federal Indian law, and constitutional law, this Article evaluates the fallacy in applying the Equal Protection Clause to claims about ICWA. In doing so, this Article demonstrates that ICWA contains an anti-colonial equity principle that is contrary to the equal protection doctrine—a doctrine that Congress knew could never apply when the matter came to accessing the rights of American Indian families against those of the settlers, primarily because the rights of American Indian individuals are intricately linked to the federal trust responsibility. This Article argues that given ICWA’s character as an anti-colonial statute, applying the Equal Protection Clause to it will only stand to yield absurd results in furtherance of a colonial project that Congress has abandoned. Instead of the equality the Supreme Court promises through its equal protection doctrine, ICWA’s mandate requires equity.
¶14 Rather than answer that question, COCA took a detour. Relying primarily on a United States Supreme Court case, COCA determined that, if Parker never had a relationship with Child, the requirements of ICWA Sections 1912(d) and (f) would not apply. As the trial court never made a specific finding regarding the nature of Parker’s relationship with Child, COCA ordered the trial court on remand to make that finding. COCA then concluded if there was no relationship the State would not have to make the necessary showings under ICWA. Parker petitioned for certiorari, arguing that COCA misapplied federal and Oklahoma law regarding ICWA. We agree.
¶15 The ICWA Section 1912 requirements are intended to respect and preserve the tribes’ interest in the custody and care of its children, and the detrimental impact to a child of placement outside its culture, in addition to and independent of any parental custodial interest. Holyfield, 490 U.S. at 49-50. Oklahoma adopted the Oklahoma ICWA (OICWA) to clarify state policies and procedures used to implement the federal statutory scheme. After Holyfield, the Legislature amended the OICWA policy statement to recognize that “Indian tribes and nations have a valid governmental interest in Indian children regardless of whether or not said children are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated.” 10 O.S. § 40.1. And the OICWA applies “to all state voluntary and involuntary child custody court proceedings involving Indian children, regardless of whether or not the children involved are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated.” 10 O.S. § 40.3(B). We presume that the Legislature was aware of the previous statutory language and intended these amendments to change the statutes accordingly. In the Matter of Baby Boy L., 2004 OK 93, ¶ 18, 103 P.3d 1099, 1105-06. Thus, under OICWA, whether a parent has a relationship with the child is not determinative of the tribe’s independent interest.
¶16 This Court reinforced this policy in Baby Boy L. There, the non-Indian mother refused father’s attempts to be active in the baby’s life and sought a non-Indian adoption outside the reservation. Indian father objected to the adoption, and the tribe intervened, moving to dismiss the adoption and seeking ICWA compliance. The trial court applied a doctrine called the “existing Indian family exception.” This doctrine, applied in a minority of states, requires that for ICWA to apply a child must be living in an Indian home, or already have a primarily Indian cultural heritage, or are otherwise somehow culturally “Indian”, rather than applying the federal ICWA definitions of Indian children. This Court, interpreting the OICWA amended language, concluded that through the amendments the Legislature had explicitly repudiated the “existing Indian family” exception to ICWA, and that exception could not be applied under Oklahoma law. Baby Boy L., 2004 OK 93, ¶ 18, 103 P.3d at 1105-06.
This rule finalizes revisions to the Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations proposed on February 23, 2024. This final rule requires state title IV-E agencies to collect and report to ACF additional data related to the Indian Child Welfare Act of 1978 (ICWA) for children in the AFCARS Out-of-Home Care Reporting Population.
As you may recall, there was a rule promulgated in 2016 which was almost immediately withdrawn and replaced with a 2020 rule. It has taken another four years for the Biden administration to issue this rule. Regardless, if this rule holds, in three years all states will be required to collect ICWA data in state court cases.
Late last month, Montana adopted a new rule allowing out of state attorneys to practice in ICWA cases and waiving certain requirements. This brings the total number of states with these kind of waivers to twelve (that I am aware of). If your state doesn’t have one of these, it’s a pretty straight forward rule to advocate for. If your state does have one of these, check in with practitioners to see if they are able to access your electronic filing system once they waive in. Or work on forms regarding appeals so intervened tribes are aware when appeals involving ICWA are filed by parents.
Anyway, great job everyone. Next year it will be ten years since Nebraska included the right in their state ICWA and nine years since we passed the rule in Michigan. These rules make a huge difference for tribal attorneys and ensures their state bar license remains safe while fully representing their tribal client in ICWA cases.
Five generations of my family experienced and responded to U.S. policies of forced displacement and assimilation. In 1840, my third-great-grandfather lost his Native family around the time of the U.S. military’s forcible mass detention and removal of Native people in southern Michigan.
He was raised by a Native family that moved from southern Michigan to the northern part of the Lower Peninsula. My ancestors lived in northern Michigan settled in a Native village at Burt Lake, where they purchased multiple lots of land. Later, they transferred title to that land to the Governor of Michigan to be held in trust for their benefit.
On October 15, 1900, Sheriff Fred Ming of Cheboygan County and a lumber speculator named John McGinn poured kerosene on the entire Native village at Burt Lake, destroying everything but the church and one small shack. Following that event, which is now referred to as the Burt Lake Burnout by Michigan Native communities, children of Burt Lake village, including my great-grandfather’s generation, were sent to the federally operated Mount Pleasant Indian Industrial School.
Indian boarding schools throughout the U.S. were well-documented sites of forcible assimilation, abuse, and neglect. Native children, who were frequently removed from their homes against their parents’ wishes, arrived at the schools, where they were stripped of their traditional clothing. Their hair was cut short, they were forbidden from speaking their Indigenous languages, they were taught menial skills, and they suffered from numerous forms of physical and sexual abuse as well as malnutrition, rampant spread of disease, and other forms of neglect.
Many Native children died during their institutionalization at Indian boarding schools, and the U.S. has only identified a portion of the grave sites of these children. Those who survived Indian boarding schools speak of persistent feelings of unworthiness and shame for being Indian.
My grandfather was among the children born to the generation that attended the Mount Pleasant Indian Industrial School. He attended Holy Childhood School of Jesus, an Indian boarding school operated by the Catholic Church in Harbor Springs, Michigan.
At Holy Childhood, my grandfather met my grandmother, who also lived at the school. They later married and had five children, all of whom were taken from them by social services.
One of the lasting legacies of Indian boarding schools is that children who attended these schools grew up without exposure to their own families’ parenting skills. Instead, survivors grew up learning cooking and cleaning over academics and were subjected to institutional abuse.
These experiences deeply traumatized many survivors of the schools and left them unprepared for gainful employment and economic prosperity in adulthood. Furthermore, social services agencies in the twentieth century treated Native families as incapable of raising their own children.
By 1978, 25% to 35% of all Native children in the U.S. were removed from their homes and placed in foster care, adoptive homes, or institutions. In nearly all cases, Native children were placed with families who were not Native, leading to the widespread loss of children’s cultural identity and connection with their tribal communities.
Like so many of the Native children born in the 1950s, my mother was removed from her family as an infant and lived in multiple foster care homes until she was adopted by a white Catholic family with one of her biological sisters at the age of five.
My mother and aunt experienced loss of their Anishinaabe cultural identity. They also confronted cruel negative stereotypes about Native Americans in their schools, church, and family.
As an 18-year-old girl, my mother became pregnant with me and left her adoptive family. For three years, my mother and I “couch-surfed” in temporary housing until my sister was born and we found an income-pooling commune founded by a church in Detroit. The following year, when I was four, my baby sister was taken from us and adopted by a white family.
Today, I am a parent to two children. I am committed to documenting the impact of federal and state Indian law and policy on Native families and the intergenerational trauma it produces. I want my own children to be the first generation in my family since at least 1840 not to experience separation from their parents. (However, my sister lost custody of her son following life in the adoptive home that she fled during adolescence.)
I became extremely self-reliant as a child to compensate for the challenges my family had as a result of abuse and neglect. However, many negative impacts of the toxic stress of my early years continue to affect me today, such as constant hyper-vigilance and the sensation of being in survival mode, even though I’ve long established the security I lacked in my youth.
My story is not exceptional; rather, it’s representative of and part of a pattern common to Native families throughout the country. Themes of substance abuse, thoughts of suicide, domestic violence, lack of secure housing, and financial issues plagued the adults in my family, contributing to toxic stress.
On the Adverse Childhood Experiences scale, which measures children’s exposure to various forms of abuse, neglect, dysfunction, and chaos, I score an 8 out of 10. Scores of 8 through 10 are shared by an estimated 1% to 3% of the U.S. population.
I know many Native community members who score a 10 out of 10. Studies have shown that people with an ACE score of 4 or more have a greater likelihood of developing chronic health conditions, they are four times more likely to experience depression, anxiety, and substance use disorders than the general population, and they have a lower life expectancy.
They are also 12 times more likely to attempt suicide.
My work is intended to help other Native families understand how federal and state Indian policies have contributed to multiple generations of profound harm that continue to cause reverberating impacts in the present.
I am exploring how evidence-based strategies for surviving and thriving despite high ACE scores can be scaled and tailored to address historic trauma using culture, traditional teachings, and education.
I am also examining how our justice and political system might respond and provide remedies for the intergenerational harm.
I am an advocate of a multi-pronged approach that includes components such as an acknowledgement of the full effect of the harms experienced by Native families; formal and meaningful apologies; accountability for individuals, organizations, and governments; restitution; rehabilitation; and healing as defined and prescribed by Indigenous communities.
Try as they did, the federal and state governments did not succeed at whitewashing our people. It came close. And now they must take action on each of these prongs to help Indigenous people heal.
In 1978, the United States enacted the Indian Child Welfare Act (ICWA) “to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture.” The ICWA was codified to address centuries of genocidal government policies, boarding schools, and coercive adoptions that ruptured many Native families. Now one of the strongest pieces of legislation to protect Native communities, the ICWA was designed to ensure that Native foster children are placed with Native families. Implementing the ICWA has not been smooth, however, as many non-Native foster parents and state governments have challenged the ICWA. While the ICWA has survived these legal challenges, including the recent 2023 Haaland v. Brackeen Supreme Court case, the rise of non-Natives claiming Native heritage, also known as self-indigenizers or “pretendians,” represents a new threat to the ICWA. This Article presents a legal history and analysis of the ICWA to unpack the policy implications of pretendians in the U.S. legal context. This Article demonstrates how the rise of pretendians threatens to undermine the very purpose of the ICWA and thereby threaten the sovereignty of Native peoples. By legally sanctioning the adoption of Native children into non-Native pretendian homes, the ICWA can facilitate a new era of settlers raising Native children, rather than preventing this phenomenon as intended. In response, this Article offers concrete policy recommendations to bolster the ICWA against this threat.
In remanding the case, however, we would be remiss if we did not call the Juvenile Court’s attention to the shared agreement that both the Department and the Tribe have in this appeal regarding the Existing Indian Family Doctrine, which was the doctrinal basis upon which the Juvenile Court rejected the ICWA and denied the request for transfer. Indeed, in response to the Tribe’s general advocacy on appeal concerning the invalidity of the Existing Indian Family Doctrine, the Department has specifically disclaimed the vitality of the doctrine, arguing, as we previously noted, that federal regulations “foreclose reliance” on it. Although we have little doubt that the parties still disagree on other issues relevant to a decision to transfer this matter to the tribal court, the shared agreement between the Tribe and the Department regarding the Existing Indian Family Doctrine strongly counsels in favor of the Juvenile Court revisiting the transfer request (as the doctrine was its sole cited basis for denial).
There is only one public brief available, but it’s relevant:
From California Tribal Families Coalition (supported by Casey Family Programs), but not limited to California practice. This is a much-needed practice publication–a small part of which will be presented tomorrow at the federal ICWA training. Next week there is a full training using these standards at the TICA conference in Santa Barbara.
Turtle Talk 
You must be logged in to post a comment.