Related Secretarial Memo here:
Here, by Nick Estes.
For nearly a century, the Canadian government took indigenous Canadians from their families and placed them in church-run boarding schools, forcibly assimilating them to Western culture. Children as young as 2 or 3 years old were taken from their homes, their language extinguished, their culture destroyed. With support from the Pulitzer Center on Crisis Reporting, photographer Daniella Zalcman has been documenting the lingering effects of this trauma for her book, Signs of Your Identity, this year’s winner for the FotoEvidence Book Award.
Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.
Here is the abstract:
This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.
Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.
The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.
From aljazeera here.
Ann Piccard has published Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137 (2014).
There is a special kind of racism in this country against Native Americans, and it is the “last acceptable racism.” The author of that poignantly accurate description of most Americans’ attitudes towards Native Americans, who is both a Native American and a Jew, noted,
Not that long ago, white administrators of Indian boarding schools told our children that the “Indian in you shall die.” This kind of treatment and forced thinking has a lasting generational effect. It can be difficult to break through that type of programming. Many of our people, however, have shaken off these forced ideological shackles to speak the truth and demand long overdue respect. Our voice is getting louder.
Our words are being said with more frequency and emphasis. But people need to hear us. Societal racism should no longer be an ad hoc affair, which is routinely accepted when directed against a certain group. It should be universally condemned. Perpetuating past wrongs and dehumanizing concepts hurts everyone.
This last acceptable racism is rarely mentioned in the U.S. However, one day in a very small town in northern Minnesota, in an area that has been economically depressed ever since the decline of the taconite and iron ore mining industry several decades ago, I watched two Native American men park a pickup truck in front of the local pawn shop.
I could tell the young men were Native Americans only because of the Bois Forte Band license plate on their truck; other than that, they looked, sounded, and acted like most of the other men in that rural north woods town. Upon reflection, of course, I realized that their skin was slightly darker than most residents of the town; I also began to notice that I did not see dark-skinned people working or shopping in any of the town’s stores. My eye was untrained, a fact that I attribute to my upbringing in the Deep South,6 where I was in a small minority of white children who were raised by our parents to see and to protest (and refuse to accept) the prevailing racism toward African-Americans. The subtle differences in appearances between the Native Americans and the “whites” in Minnesota had gone unnoticed by my Southern eyes. But as we watched the young men take their chain saws into the pawnshop that day, my husband remarked that men in northern Minnesota who hock their chain saws must be in pretty bad shape, because how could they survive, let alone make a living, without such tools?
Here is the opinion in Estate of Hannifin.
Max Hill, in his capacity as Special Representative of the Estate of William J. Hannifin, appeals from a district court order awarding Willis Nakai a portion of that estate. Though Nakai is neither biologically nor legally related to Hannifin, the district court determined that he was nonetheless entitled to inherit under the doctrine of equitable adoption.
We reverse. We hold that the doctrine of equitable adoption, first recognized in In re Williams’ Estates, 348 P.2d 683 (Utah 1960), has been preempted by the detailed provisions of Utah‘s Probate Code. See UTAH CODE §§ 75-1-101 to -8-101. And, because Nakai does not qualify under the Probate Code‘s intestate succession provisions, we reverse the decision entitling him to inherit from Hannifin.