Unreported Transfer to Tribal Court Decision out of Minnesota

I get asked a lot–just last week, in fact–to address the claim that Native children are often ripped from loving foster homes where they have been for a long time because the Tribe wants something different. I think the fact pattern in this case is more usual–the child was in the home (an Indian foster home) for five months when the Tribe requested visitation between her and her grandmother. Within a year, the state child welfare department petitioned to move the child to her grandmother. The original placement was always a foster placement and ICWA applied to this child from very early on in the proceedings. Moving a child to a permanent relative home within a year is very fast for a child welfare case. And yet still, the foster family intervened and attempted to stop the transfer to tribal court and regain custody of the child. 

The Court of appeals here affirmed the lower court’s decision to transfer. 

Article on Tribal Constitutions and Constitutional Reform

This article focuses heavily on the current constitutional reform movement going on at the White Earth Nation in Minnesota, but also makes some interesting points about tribal constitutions in general.

A few quotes from the article:

Most Americans don’t realize that tribes have their own constitutions, which set down rules for everything from tribal government to citizenship. But many were built on models written by the U.S. Department of the Interior nearly 80 years ago.

Times have changed, tribal leaders say. Today many Indian nations are expanding their economies, experimenting with gaming and hoping to include their own cultural touchstones and collective priorities in the document that governs them.


“We are governed by the Indian Reorganization Act, written by the federal government in 1934,” said Vizenor, chairwoman at White Earth, the state’s largest tribe. “[Our constitution] doesn’t have an independent judicial system. It doesn’t have separation powers. And there are about 27 references about asking permission from the Secretary of Interior in order to do something.”

A new constitution, Vizenor said, could be the key to attracting new businesses, running clean elections, creating an impartial judiciary — and creating a place where more people want to live, work and invest.


About 250 of the 333 tribal constitutions in the United States were based completely or partly on the Indian Reorganization Act, according to David Wilkins, professor of American Indian studies at the University of Minnesota. The U.S. Constitution doesn’t apply to Indian Country because tribes are sovereign nations that existed before the constitution was drafted, he said.

Tribal constitutions determine how tribes govern themselves internally and how they relate to other government entities such as counties and states. Having stronger checks and balances in place can help prevent the favoritism and corruption that has prevented some tribes from prospering, supporters say.

Research has shown that tribes with the most capable governments are more successful economically than others, said Steve Cornell, co-director of the Harvard Project on American Indian Economic Development and a professor at the University of Arizona.


White Earth got started on the process in 1997, after several tribal leaders — including former chair Darrel (Chip) Wadena — were convicted of election fraud and bid-rigging related to the tribe’s casino. When Vizenor was elected tribal chair in 2004, she made constitution reform a priority.

White Earth’s proposed constitution contains the first term limits for tribal leaders and an independent court system. Judges must be graduates of a law school accredited by the American Bar Association, but must also have “knowledge of Anishinaabe [Ojibwe] culture, traditions and history.”

It creates a legislative council, but one advised by a “council of elders.” It contains safeguards guaranteed in the U.S. Constitution, such as freedom of religion, speech and press. But it also protects “freedom of artistic irony,” a form of satire used in literature that “may not please some citizens.”

Vizenor hopes good governance will attract and keep younger tribal members, who often leave reservations because, in the absence of clear rules, jobs can hinge on political connections.

In the past, Minnesota tribes interested in reforming their governments often lacked the expertise and finances, said Jaime Pinkham, a vice president at the Bush Foundation. That’s why the foundation stepped in.

Even with funding, however, challenges remain. How do you stir up excitement over a constitution in a place grappling with poverty? How do you get buy-in from folks who stand to lose political privilege? How do you deal with the contentious tribal citizenship issue?

“Change is frightening to people,” said Anton Treuer, executive director of the American Indian Resource Center at Bemidji State University. “But times are changing, and we need to change with them.”

Full article here.