Article on Allotment-Era Literature and Cases on Tribal Jurisdiction and Reservation Diminishment

My article. “How Allotment-Era Literature Can Inform Current Controversies on Tribal Jurisdiction and Reservation Diminishment” was recently published in volume 82 of the University of Toronto Quarterly, in a special issue on law and literature.

I looked at non-Native authored and Native-authored literature of the time, specifically in South Dakota and surrounding states and territories, to see whether it helped illuminate the injustices that were being perpetrated on tribes through the allotment process and the takings of surplus lands. The idea was that this literature might have, like the news articles I looked at in “Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers,” put purchasers on notice that tribal lands were being taken unjustly. Most of the non-Native literature I looked at was not that helpful, but a work by historian/poet Doane Robinson was an exception. On the Native side, Zitkala-Sa’s short stories proved to be the most helpful, but the works I looked at by Luther Standing Bear and Charles Eastman were also somewhat helpful.

Unfortunately, the article isn’t available on Lexis or Westlaw, but it is on Muse, if you have access to that. A sightly older version is on my ssrn page.

Flawed NPR Ombudsman Report on SD ICWA Stories


The network and the ombudsman, Edward Schumacher-Matos, who is paid to critique NPR’s news coverage, have split sharply over his findings.

The series, which appeared in October 2011 on All Things Considered and was published on, alleged that the state of South Dakota took Native American children and separated them from their families and tribes at an alarming rate. The series won national awards and helped inspire federal and state reviews of such policies.


Kelly McBride, a senior ethics scholar at The Poynter Institute, a journalism training center in St. Petersburg, Fla., and past ombudsman for ESPN, says Schumacher-Matos wanted NPR to produce a different story — one about the full crisis besetting Native American families — rather than simply critique the story it broadcast.

“In a way, it sets up an unfair challenge to NPR,” McBride says. “Because, if he wants to do a column about why they chose this story instead of that story, then he should do that column. But he essentially does both in this very long report.”

McBride argues that it’s hard to tell whether the weight of the ombudsman’s critique is warranted by the mistakes admittedly committed by NPR in this case. She faults both NPR and Schumacher-Matos for being less than clear about the source of their data.

NPR continues to stand by the stories:

In this instance, however, we find his unprecedented effort to “re-report” parts of the story to be deeply flawed. Despite the report’s sweeping claims, the only source that figures in any significant way in the ombudsman’s account is a state official whose department activities were the subject of the series. Additionally, the ombudsman’s interaction with state officials over the past 22 months has impeded NPR’s ability to engage those officials in follow-up reporting. Overall, the process surrounding the ombudsman’s inquiry was unorthodox, the sourcing selective, the fact-gathering uneven, and many of the conclusions, in our judgment, subjective or without foundation. For that reason, we’ve concluded there is little to be gained from a point-by-point response to his claims.

Here is the report. The NPR editors are correct that there is little to be gained from a point-by-point response. In a very quick scan of the first page, the line “There is some debate over whether ICWA applies to tribal judges, which I review in Chapter 6. Whether it does or not, ignoring the tribal judges is unjustifiable under NPR’s standards of completeness and fairness.” indicates to us that the Ombudsman is uninformed as to the application of ICWA, at the very least. Whether ICWA applies to tribal judges is not up for a debate. His further comments in Chapter 6 are distressing in their inaccuracy:

We have discussed how ignoring the tribal judges is journalistically wrong. It may be legally mistaken, too, under an ICWA framing. The American Bar Association’s Indian Child Welfare Act Handbook, by B.J. Jones, Mark Tilden and Kelly Gaines-Stoner, says of the law:

The beginning point for any analysis of the Indian Child Welfare Act in an understanding of what type of proceeding the act is intended to cover. The Act applies only to child custody proceedings in state courts. (My ital. p. 27, 2nd Edition).

And here is what the respected advocacy group, the National Indian Child Welfare Association, a source used in the series, says on its website:

ICWA does not apply to divorce proceedings, intra-family disputes, juvenile delinquency proceedings, or cases under tribal court jurisdiction.

I am not expert enough to take a position on the law, but clearly there is at least enough serious difference that if the tribal courts are to be lumped in with state ones on legal grounds, the story has to say why. It did not. Rather, its framing of its interpretation of ICWA was presented as a given.

It is too bad the Ombudsman didn’t just end after “I am not expert enough.” His misreading of these two sources is disturbing. A further scan of Chapter 6 indicates the Ombudsman is confused about the legal status of tribes and tribal sovereignty. We can only speculate about the timing of the release of this six chapter report during the larger national story happening right now about ICWA.

SD Tribes Discuss the Idea of Creating Tribal-Run Foster Care Systems

Following mounting anger over charges that the state has routinely and illegally placed Native American children with non-native foster parents, South Dakota tribes gathered Monday in Rapid City to discuss how they could form their own tribal-run foster care systems. . . .

Since a conference held by the tribes in Rapid City in May, attended by Kevin Washburn, the U.S. Interior Department’s assistant secretary for Indian Affairs, the Lakota have focused increasingly on steps to wrestle away federal funding from South Dakota and create native-run foster care systems.

Article here.

NPR’s Coverage of the South Dakota Summit on Indian Children


Federal officials met with South Dakota’s nine Sioux tribes on Wednesday for a historic summit in Rapid City. A year in the making, it was an effort to address long standing concerns over the high number of Native American children the state places in white foster homes. State officials, however, didn’t show up for the meeting.

NPR on ICWA in South Dakota

From tonight’s All Things Considered: here.

This week, officials from the Crow Creek Sioux Nation and seven other tribes in the state sent an extensive report to Congress accusing South Dakota of systematically violating the federal Indian Child Welfare Act. The federal law says that, with some exceptions, if the state removes a Native American child, the state must place that child with relatives, tribal members or other Native Americans.

The report, which the officials wrote with the help of the nonprofit Lakota People’s Law Project, concludes that in many instances the state does not have the authority to remove native children from tribal land. When the state does have that authority, through a tribal court order or tribal council agreement, the report says the state is failing to place the majority of those children according to the law.