Indian Child Welfare Act

Fletcher: “The Next Justice’s Impact On The Indian Child Welfare Act” (law360.com)

Matthew L.M. Fletcher1 Comment

The Next Justice’s Impact On The Indian Child Welfare Act

Matthew L.M. Fletcher

Justice Antonin Scalia’s death impacts Indian country in dramatic ways. Last term, the most critical tribal court jurisdiction appeal to hit the Supreme Court of the United States in decades was affirmed by a 4-4 tie in favor of tribal jurisdiction. The court declined certiorari in a pair of tribal labor relations cases where there was a gaping circuit split, possibly because the justices foresaw yet another 4-4 tie. The next justice may be the deciding vote in cases that bring the same questions, but bigger cases involving the Indian Child Welfare Act(ICWA) are in the pipeline.

ICWA is invoked in literally hundreds of child welfare cases throughout the country every year. ICWA applies whenever an Indian child is removed from home by state agencies, and further applies when an Indian parent’s rights to a child might be terminated. ICWA requires state courts with jurisdiction over Indian children to notify relevant tribes and allow them to intervene as a party, and in some matters transfer jurisdiction to tribal court. ICWA more quietly establishes robust due process protections for Indian parents and Indian children, protections that Casey Family Programs and 16 other child welfare advocacy groups call the “gold standard” in child welfare statutes. Given that many state child welfare systems are bureaucratic nightmares where families can be lost, this is an important statement.

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Fletcher (again) on ICWA in Cato Unbound

Matthew L.M. Fletcher1 Comment

Here is “A Civics Lesson.”

An excerpt:

In legal analysis, facts matter, and so it is time to return to the war on facts in this series. Mr. Sandefur still tries to attack ICWA in the Alexandria P. matter, even though California law that applies to all children would have Lexi back with her relatives, an outcome all parties excepting the foster parents wanted and prepared for. Along the way, Mr. Sandefur incorrectly states that the Mississippi Band of Choctaw Indians was involved when in fact it was the Choctaw Nation of Oklahoma. Mr. Olson incorrectly assumes that the Shoalwater Bay Tribe had interfered in In re T.A.W. when in fact the non-Indian parent filed the appeal asserting ICWA claims; the tribe is not a party to the case and opposes the non-Indian parent, who served time in prison for robbery and whom the tribal court found to have engaged in domestic violence. One could read the courts’ opinions to find these facts, except in one case, Baby Girl. Here, Mr. Sandefur forgets that the Cherokee dad was an active duty serviceman served with adoption papers immediately before his deployment to an active war zone without the advice of counsel. These are facts the Supreme Court majority also chose to ignore. Conversely, the South Carolina Supreme Court’s opinion addressed all these facts in reaching the opposite outcome. Facts, in law, matter.

All of the cases discussed in this series are complicated cases with difficult fact patterns, and perhaps no one case can vindicate or condemn the ICWA. Consider Mr. Olson’s reference to In re M.K.T. He seems to argue that the case is about a Cherokee father who tried to relinquish his tribal membership in order to avoid ICWA’s application, but the Cherokee Nation stubbornly refused to yield. The facts are more complicated and actually highlight how ICWA could have been useful if the parties had complied initially. The Cherokee father signed the tribal membership relinquishment form without the advice of counsel. The foster parent brought him the form while he was in prison (recall here the incarcerated parent that Mr. Olson accidentally champions by attacking the tribe in T.A.W.), bringing a notary along to cement the deal. The father later testified that he did not understand the legal ramifications of his relinquishment under tribal law, and that no one informed him that there was an Indian family available or anything else about the state of his child. All ICWA requires is the basic procedural right for Indian parents to seek the advice of counsel and to give knowing consent before a judge before their parental rights are terminated. The coercion of an imprisoned father into signing away his rights is a strange fact pattern on which to rest any conclusions about ICWA. Had the Cherokee father access to legal advice in the first instance like the public policy grounding ICWA supports, the case likely would never have been litigated, let alone reached the Oklahoma Supreme Court. The same was true for Baby Girl, where counsel for the adoptive couple failed to properly notify the tribe at the inception of the adoption process, and Alexandria P., where the foster couple fought against the wishes of all other parties to the case and against the best interests of Lexi.

In conclusion, ICWA stands up to scrutiny. Because of the treaty tradition, federal statutes like ICWA, and modern tribal governance, 21st century American Indian people know who they are and where they come from. Modern tribal governance is a triumph of the rule of law over years and years of American greed and bigotry. Indian tribes exist to preserve their homelands, includingAnishinaabeki, allowing contemporary Indian people to access sacred sites and to know where their ancestors are buried. Indian tribes encourage their people to learn their languages, includingAnishinaabemowin, and cultures. Indian children are learning their histories and languages, rather than being delivered to assimilationist boarding schools or shipped out to non-Indian families. Anishinaabe children are learning mino-bimaadiwin, the principle holding that all beings are connected and that actions of people have consequences on all. And because tribes are working to protect children, rather than treat them as cogs in a state bureaucratic hell or chattel to be bartered through the private adoption market, Indian children have a place to turn for help. Tribal law – inaakonigewin – speaks for itself.

My previous entry in this series is here.

Kristen Carpenter’s entry is here.

Fletcher on ICWA at Cato Unbound

Matthew L.M. Fletcher2 Comments

Here is “Limit Government Intrusion in Indian Families’ Lives.” This essay is part of a series of online essays at Cato Unbound on the Indian Child Welfare Act.

Excerpts:

The Indian Child Welfare Act (ICWA) restricts government intervention in Indian families’ lives, imposes important obligations on the government that benefit both children and parents when it does interfere, and limits the ease by which private entities profit from government action.

And:

Alexandria P. is a story of how foster parents created an adversarial relationship with a child’s family, disregarding the goal of reunification, and then created a perfect storm of anti-Indian media sentiment when they lost. Some facts should be made clear, in case they are not: Lexi knew and regularly visited her Utah family – her sisters and her aunt and uncle – and she always knew she was a foster child. From the beginning, the California foster couple was the only party to contest Lexi’s placement with her relatives. The state of California, the Choctaw Nation, her relatives, her father, and Lexi’s own counsel all agreed that the placement with her relatives was absolutely in her best interest. Not once did any court disagree.

Finally:

Casual racism against American Indians is alive and well. In this hostile racial climate, it shouldn’t be surprising that Indian parents in South Dakota argue that “there’s this collective belief that Native people can’t take care of their own children.” The critique that ICWA improperly routes Indian children to their relatives’ homes instead of non-Indian homes is a critique that takes advantage of racial animus against Indian people and comes dangerously close to an allegation that Indian parents and tribal communities are inherently inferior (others have outright denounced the Goldwater Institute’s goals for this reason). Indian people love their children the same as everyone else. ICWA, the gold standard in child welfare, is there to support Indian families against governments that too often devalue them.

Donald Trump and Federal Indian Policy: “They don’t look like Indians to me.”

bryannewland4 Comments

In 1993, Donald Trump appeared before the United States House of Representatives Committee on Natural Resources to offer testimony on Indian gaming. 1993 Donald Trump bears a striking resemblance to Presidential Candidate Donald Trump, in terms of demeanor and language – Trump’s oral testimony is consistent with the language he has used throughout his campaign for President.

Most of Trump’s testimony focused on Indian gaming itself, and his perception that the Indian Gaming Regulatory Act granted tribes an unfair advantage over his own gaming enterprises.

But, it was another part of Trump’s testimony that caught my attention. He questioned the legitimacy of Indian tribes based upon the physical appearance of their members. Here is an exchange he had with Rep. Miller of California:

Mr. Miller. Is this you discussing Indian blood: “We are going to judge people by whether they have Indian blood,” whether they are qualified to run a gaming casino or not?

Mr. Trump. That probably is me, absolutely, because I’ll tell you what, if you look—if you look at some of the reservations that you have approved—you, sir, in your great wisdom, have approved— will tell you right now, they don’t look like Indians to me, and they don’t look like Indians. Now maybe we say politically correct or not politically correct. They don’t look like Indians to me, and they don’t look like Indians to Indians, and a lot of people are laughing at it, and you are telling how tough it is, how rough it is, to get approved. Well, you go up to Connecticut, and you look. Now, they don’t look like Indians to me, sir.

The written hearing records also include a transcript from his appearance on the Don Imus show earlier that same year:

Don Imus Show (June 18, 1993)

TRUMP: Well, I think I might have more Indian blood than a lot of the so-called Indians that are trying to open up the reservations.

I looked at one of them – well, I won’t go into the whole story, but I can tell you, I said to him, “I think I have more Indian blood in me than you have in you.” And he laughed at me and he sort of acknowledged that I was right. But it’s a joke. It’s really a joke.

IMUS: A couple of these Indians up in Connecticut look like Michael Jordan, frankly.

TRUMP: I think if you’ve ever been up there, you would truly say that these are not Indians. One of them was telling me his name is Chief Running Water Sitting Bull, and I said, “That’s a long name.” He said, “Well, just call me Ricky Sanders.” So this is one of the Indians.

 

You can see a video of Trump’s appearance before the Committee here.  The transcript and hearing record is available here: 1993 Trump Nat Res Testimony PDF. (Trump’s testimony begins around Page 175). I recommend reading the entire portion of the record involving Trump, as it sheds light on his views on Indian gaming, tribal sovereignty, and the tax status of Indian tribes.

It is tempting to heap these comments onto the pile of other racist comments that Trump has made and be done with it.

But, Trump’s 1993 comments to the Natural Resources Committee highlight a problem that has plagued federal Indian law from the Indian Reorganization Act until today: the tension between the racial and political identity of Indian people.

Trump’s comments shed light on how a Trump Administration may implement its Indian policy, posing a real risk that the federal government will subordinate the sovereign status of Indian tribes to the racial identity of individual Indians. Such a policy would rely on a subjective evaluation of who is “Indian enough” in Trump’s estimation.

In the past, when the Federal government has focused on the racial identity of Indians (rather than our political identity), it has almost always been done to limit the Federal government’s trust obligations to Indians.

The Indian Reorganization Act and “Half-Blood” Indians

For nearly 160 years – from 1776 until 1934 – federal Indian policy could be fairly summarized this way: get rid of the Indians (through war or assimilation) and take their land.

In 1934, Congress enacted the Indian Reorganization Act, or the “IRA”. The IRA marked the beginning of modern federal Indian law, and at least recognized the right of Indian people to govern themselves into the future. Congress also understood that this would put the federal government on the hook for a continuing relationship with Indian tribes, and was forced to confront how to decide who were the “real Indians” and who were not.

On May 17, 1934, the United States Senate Committee on Indian Affairs debated the terms of the IRA. At issue in that debate was which Indians would be eligible to organize under the IRA and which Indians would be left out. Here is an exchange between Committee Chairman Burton Wheeler and Indian Affairs Commissioner John Collier during that debate:

The CHAIRMAN. There is a later provision in here I think covering that, and defining what an Indian is.

Commissioner COLLIER. This is more than one-fourth Indian blood.

The CHAIRMAN. That is just what I was coming to. As a matter of fact, you have got one-fourth in there. I think you should have more than one-fourth. I think it should be one-half. In other words, I do not think the Government of the United States should go out here and take a lot of Indians in that are quarter bloods and take them in under the provisions of this act. If they are Indians of the half-blood then the Government should perhaps take them in, but not unless they are. If you pass it to where they are quarter-blood Indians you are going to have all kinds of people coming in and claiming they are quarter-blood Indians and want to be put upon the Government rolls, and in my judgment it should not be done. What we are trying to do is get rid of the Indian problem rather than to add to it.

Senator Wheeler expressed concern that the IRA would be used by “white people” (his words) claiming to be Indian.

When the IRA was enacted into law one month later, it defined “Indian” as:

…all persons of Indian descent who are members of a recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.

The Bureau of Indian Affairs and Indian tribes are still wrestling with this definition today – as seen in the Carcieri decision and the recent Mashpee litigation. The logical definition of “Indian” should have been simply, “all members of a recognized Indian tribe;” but, by adding time, residence and blood quantum limitations, Congress was seeking to evade its financial obligations and to constrain of the sovereign status of tribes.

Political Identity v. Racial Identity and Historic Tribes v. Created Tribes

In the 1970’s, the BIA implemented a policy of “Indian preference” in employment – this applied to new employment, and opportunities for promotion within the BIA. Non-Indian employees of the BIA filed a class-action lawsuit alleging that this preference in employment was unconstitutional racial discrimination. The case – Morton v. Mancari – reached the U.S. Supreme Court in 1974. The Court upheld the BIA’s preference program, explaining that it was not racial discrimination. Instead, the Court stated that the preference was aimed at Indians as members of a political entity – similar to state-laws allowing state governments to grant employment preference to state residents:

Contrary to the characterization made by appellees, this preference does not constitute “racial discrimination.” Indeed, it is not even a “racial” preference. Rather, it is an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups. It is directed to participation by the governed in the governing agency. The preference is similar in kind to the constitutional requirement that a United States Senator, when elected, be “an Inhabitant of that State for which he shall be chosen,” Art. I, § 3, cl. 3, or that a member of a city council reside within the city governed by the council. Congress has sought only to enable the BIA to draw more heavily from among the constituent group in staffing its projects, all of which, either directly or indirectly, affect the lives of tribal Indians.

At the same time as Morton v. Mancari, the Department of the Interior was drawing distinctions between Indian tribes based upon when and how they were recognized by the federal government. Attorneys within the Department’s Office of the Solicitor advanced the theory that some Indian tribes were “historic tribes,” because they have always maintained a relationship with the United States, while other tribes were “created” by the federal government. According to those attorneys, only “historic tribes” could exercise the full sovereign powers of Indian tribes, while “created tribes” had lesser sovereign powers.

Not surprisingly, the “historic tribes” included many of the Indian tribes that fit the romanticized ideal of Indians – tribes in the Great Plains and the Southwest (i.e. those tribes whose members “looked” like Indians). “Created” tribes were often those tribes whose members did not look like the Indians people saw in Hollywood westerns – people with lighter hair and eyes, or people with mixed Black or Mexican ancestry. This standard of “Indianness” ─ a Federal race-based standard ─ was again used to limit tribal sovereignty and contain the “Indian problem.”

The Department’s disparate treatment of “historic” and “created” tribes got so bad that Congress intervened, and enacted amendments to the IRA in 1994 to prevent the BIA from discriminating among tribes on this basis.

Trump and Indian Policy Today

Indian law today rests in large part upon the distinction between Indians as members of a racial/ethnic group, and Indians as citizens (a more accurate term than “members”) of sovereign political entities.  This principle is foundational.

There are 568 federally recognized Indian tribes today, from southeast Florida to the north slope of Alaska. Some tribes’ citizens look like the idealized Indians from George Catlin paintings, while other tribes’ citizens would not “appear” to be Indian to a passerby on the streets of Washington, D.C. Despite the vast differences in their racial purity, every tribe maintains the right to determine its own rules for citizenship, to be governed according to its own laws, and to engage with the United States on a government-to-government basis.

But, there continue to be people who either don’t understand the distinction between the ethnic and political identities of Indian people, or who want to eliminate that distinction altogether.

In its recent decision in Adoptive Couple v. Baby Girl, the Supreme Court carved a hole in the Indian Child Welfare Act (which was enacted in 1978 to stop the epidemic of Indian children being taken from their families in Indian communities). In writing for the Court, Justice Alito left little doubt that the decision was premised on the Indianness of Baby Girl. Here is the first line of his opinion: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.”

Last year, the Goldwater Institute in Arizona filed a lawsuit against the Department of the Interior seeking to overturn the entire Indian Child Welfare Act, arguing that the act unlawfully discriminates against Indian children on the basis of race. (The opening page of its complaint alleges, “Children with Indian ancestry, however, are still living in the era of Plessy v. Ferguson”).

The continuation of Indian tribes as sovereign governments in the United States depends, in large part, upon the distinction between Indians as a race of people, and Indians as citizens of Indian tribes. To blur or eliminate that distinction is to take an axe to the trunk of the tree of federal Indian law – federal laws applicable to Indians would be subject to the U.S. Constitution’s prohibition against racial discrimination.

Donald Trump’s most notable comments about Indian tribes – made before the Committee on Natural Resources – reveal that he does not draw the distinction between the racial and political identities of Indian people. His view of the legitimacy of Indian tribes depends on the physical appearance of their members. As he told Don Imus, “it’s just one of those things that we have to straighten out.”

A Trump Administration that acts upon that impulse will dramatically alter federal Indian policy as we know it.

Wisconsin Disretionary Transfer Rule to be Indefinitely Extended

Matthew L.M. Fletcher

According to Larry Nesper:

The Supreme Court of Wisconsin today, June 21, in an administrative hearing, voted to indefinitely extend the Discretionary Transfer Rule permitting state court judges to transfer cases to tribal court on their own authority.  It had been scheduled for review after five years. The rule has been most extensively used by the Oneida Nation which has transferred 1400 child support cases in the last several years out of county courts and into tribal court.  The order will be out by the end of the term this summer.

Comments on this rule going back to 2007 are here.

Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

Matthew L.M. Fletcher2 Comments

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.

Wall Street Journal Publishes “Why Indian Child Welfare Act was Needed”

Matthew L.M. Fletcher3 Comments

Why Indian Child Welfare Act Was Needed – WSJ

Matter Involving Removal Jurisdiction under ICWA in Child Custody Dispute involving “Pembina Nation Little Shell Band of North America” Member

Matthew L.M. Fletcher

Here are the materials so far in Disanto v. Thomas (S.D. Ga.):

12-1 Motion to Remand

22 Opposition

23 Reply

32 Magistrate Report

 

California Court of Appeals Holds ICWA Doesn’t Apply Where Pala Band Member Child is Disenrolled During Adoption Proceedings

Matthew L.M. Fletcher

Here is the unpublished opinion in In re K.P.:

In re K.P.

An excerpt:

Michelle T., a member of the Pala Band of Mission Indians, contends that the juvenile court violated the Indian Child Welfare Act (ICWA), title 25 United States Code section 1901 et seq. and Welfare and Institutions Code section 224 et seq. by terminating her parental rights to her children, K.P. and Kristopher P., under section 366.26.
Throughout most of their dependency cases, K.P. and Kristopher were eligible for membership, or were enrolled, in the Pala Band of Mission Indians (Pala Band). At the children’s first section 366.26 hearing, the Pala Band did not consent to the children’s adoption and the juvenile court ordered a plan of guardianship. Several years later, when the children’s cases proceeded to a second section 366.26 hearing, the juvenile court learned that the Pala Band of Mission Indians had disenrolled K.P. and Kristopher, and others, on the ground that they lacked the blood quantum necessary for membership.
Michelle argues that in view of a pending appeal in the United States Court of Appeals for the Ninth Circuit challenging the validity of the Pala Band’s enrollment ordinance that resulted in the disenrollment of K.P. and Kristopher and the others, the juvenile court erred when it found that K.P. and Kristopher were not Indian children within the meaning of the ICWA and declined to apply ICWA’s substantive and procedural protections at the children’s second section 366.26 hearings. Michelle also argues that enrollment in a tribe is not required to be considered an Indian child, and that the Pala Band did not provide written confirmation that enrollment is a prerequisite for Pala Band membership.
We conclude that the juvenile court correctly ruled that the Indian tribe has the sole authority to determine its own membership and that the juvenile court must defer to the membership decisions of an Indian tribe. Under federal and state law, the Indian tribe’s membership determination is conclusive. The record shows that enrollment is a prerequisite for Pala Band membership, and that the Pala Band determined that K.P. and Kristopher are not members of its tribe. Therefore, the juvenile court did not err when it determined that K.P. and Kristopher are not Indian children within the meaning of the ICWA and terminated parental rights without applying ICWA’s heightened substantive and procedural protections. We affirm.

MSU/TICA ICWA Panel

Matthew L.M. Fletcher

Erin Dougherty Lynch, Chrissi Nimmo, Kate Fort, Victoria Sweet