Indian Status Is Not Racial: Understanding ICWA as a Matter of Law and Practice

On August 31, 2013, a little girl clad in a purple shawl, holding the hands of her father and stepmother, skipped into the grand entry of the Cherokee Nation’s annual powwow. An honored participant, the little girl followed in the steps of the Nation’s principal chief and first lady, and behind them a long line of Cherokees wearing U.S. military uniforms, tear dresses and ribbon shirts, buckskin, and jingle dresses fell into the circle. In brush arbors and bleachers, spectators visited with friends and relatives, and even deeper outside, the thick dark northeastern Oklahoma night, full and bright with crickets, stars, and spirits. At the very center of it all, the little girl smiled in the embrace of her Cherokee people. She danced in the heart of their landscape and in the landscape of their hearts.

Then the drum stopped, cameras flashed, and the little girl was whisked away to a tribal safe house. A contentious legal battle was being waged over her future, and there had been threats against her and her family. Beauty in a fade, to quote the immortal John Trudell.

Within weeks, the little girl, clutching a teddy bear, would be strapped into a car seat, and driven a thousand miles away from her family and home. The Supreme Court ruled the Indian Child Welfare Act did not apply, that her dad – her own loving biological Cherokee dad who had just served a tour of duty in Iraq and was adjudicated “fit” for parenthood – didn’t have a case for custody.[1] As a result, the little girl, like generations of Indian children before her, was taken from her Indian family. Taken away from her sister, cousins, grandparents and great-grandparents, away from her princess toys and pet geese, away from shell-shaker lessons and stomp grounds – to wake up and begin her life anew in a different home, with non-Indian adoptive parents. Across Indian Country, people prayed that she would survive this experience and promised to be there one day when hopefully she would return.

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The lead essay recites a parade of horrible things that have ostensibly happened to Indian kids placed in Indian foster and adoptive families. The message appears to be that Indian kids suffer in Indian homes. Worse still their connections to tribal communities are attenuated and race-based. And if only we could reform the Indian Child Welfare Act, these kids would be placed with non-Indian families where they would be much better off.

Indian children have, unfortunately, also been taken from tribal families and abused or even killed in placements with non-Indians. Advocates concerned about the wellbeing of children are typically as concerned with these stories, and much broader problems with the child welfare system in the U.S., as they are focused on attacking ICWA alone.

Given that the privacy and wellbeing of children is at stake, moreover, it is important to shift the focus from anecdotes to data, and from rhetoric to law. From this perspective, it becomes clear that we, as a nation, have already experimented with the “wholesale separation” of Indian children from Indian families. The results of that experiment were tragic and should not be repeated. The challenge today is ensure compliance with ICWA, a statute that marshals the political status, family structures, and cultural practices of tribes toward the care of children.

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ICWA was passed by Congress in 1978 to address a national crisis. Surveys by the Association for American Indian Affairs revealed that, in 1969 and 1974, 25-35% of Indian children in the United States were being removed from their homes, and 80-90% were placed in non-Indian homes. In Minnesota, Montana, South Dakota, and Washington, Indian children were placed outside their homes at five to nineteen times than that of the non-Indian rate. In Wisconsin, Indian children were at risk of being separated from their families at a rate 1600 times greater than non-Indian children.

Why were these Indian children removed? States were asserting unprecedented authority over Indian family matters that had previously been governed by tribal and federal law. Congress found that quite often state child welfare workers’ cultural ignorance and economic bias caused them to allege neglect or abuse of Indian children where there was none. Indian children might be removed because family services perceived their material living conditions as inadequate or extended family care as inattentive, when in reality the children were safe, healthy, happy, and bonded with their tribal communities. Or just because the child welfare worker thought the Indian child – whether living on a reservation or city – would be “better off” with a non-Indian family. Such decisions undermined the role of Indian tribal governments in ensuring the longstanding rights of Indian children and families pursuant to tribal law.

These modern Indian child welfare practices have an insidious heritage: since 1850, federal policy sought to “civilize” Indian tribes by taking and re-programing Indian children. Indian children were placed in boarding schools where they were forbidden to speak tribal languages and forced to practice Christianity rather than tribal religions; during the summer they were farmed out to white families as laborers. Self-described “Friends of the Indian” claimed these placements would “Kill the Indian and Save the Man” by furthering assimilation into mainstream society. In the 1950s and 1960s, some religious organizations encouraged their members to adopt Indian kids, and certain adoption agencies were formed with such placements in mind.

But Indian children were not saved. Congress received testimony showing the opposite. Indian children placed in foster care, adoptive homes, and institutions experienced a suicide rate twice that of the reservation suicide rate and four times that of the general population. They experienced elevated rates of drug and alcohol abuse. Even children placed with loving, devoted families experienced a sense of abandonment, cultural dislocation, and other psychological harms. And for the Indian parents and siblings left behind, removal of a child “effectively destroyed the family as an intact unit.”  

Congress passed ICWA “to promote the stability and security of Indian tribes and families” by establishing “minimum Federal standards for the removal of Indian children from their families.” Procedurally, the law provides for tribes to receive notice when one of their child members is involved in a custody proceeding, and requires or allows for certain cases to be transferred to tribal court. Substantively, ICWA requires “active efforts” to keep Indian families together, and when that is not possible, it sets forth placement preferences that prioritize extended family and members of the child’s tribe. ICWA is meant to reverse generations of bad policy and, when enforced, it supports Indian families through enhanced support at the tribal, state, and federal levels.

Critics complain that ICWA is a race-based statute that improperly limits the options of Indian children based on their race. But no matter how you look at it, that’s just wrong. First, Indian status is not “racial” but rather “political” as a matter of law. The closest analogy to the Cherokee Nation is not a racial group like African Americans or Latinos, but rather a government like the state of Oklahoma, albeit a government that is unique because of its culture and history.

The political status of tribes arises from hundreds of years of treaties and engagements among governments. In the case of the Cherokee Nation, treaties date back at least to 1721, revealing almost 300 years during which the tribe has been legally acknowledged as a sovereign with the right and responsibility to take care of its citizens. This is the very same right that Congress recognized in ICWA and that the Cherokee Nation, along with 566 other tribes, is enforcing today.

It is the prerogative of a government to determine its citizenship requirements. The Cherokee Nation Constitution provides, in relevant part, “All citizens of the Cherokee Nation must be original enrollees or descendants of original enrollees listed on the Dawes Commission Rolls.” The Dawes Rolls were compiled in 1907 to determine eligibility for individual allotments of Cherokee lands.

Tribes vary with respect to the census, roll, or other list they use, and whether or not they have a “blood quantum” requirement. To find out what the rule is for enrollment in a particular tribal nation, you look up the constitution or legal code of the tribal government, usually available on its website. The tribe administers enrollment proceedings that require the production of documents, not totally unlike U.S. citizenship or state residency processes, and if successful, the tribal member receives an identification card conferring eligibility for various benefits. This process is not a mystery. It is not a baby elephant. It is federal Indian law.

This history and its ongoing expression in federal Indian policy underscores the distinctly political nature of Indian status today. It also explains why, as the Supreme Court held in Morton v. Mancari, the traditional notions of “race” that inform equal protection law do not and should not invalidate statutes enacted for the benefit of Indian tribes and tribal members. The Multi Ethnic Placement Act has exceptions for ICWA cases because being a member of a federally recognized tribe is not an ethnicity or race.

Lest this seem like a legal formality, consider how it works in practice. Governments, including states and tribes, regulate child welfare. States enjoy considerable latitude in this arena, such that the treatment of children and parents varies across jurisdictions. Some states, for example, offer a great deal of protection to biological parents, ensuring both mother and father have enough time and information to make a considered decision about putting a baby up for adoption. By contrast, states like Utah and South Carolina offer so-called “quickie adoptions” with short waiting periods and minimal notice requirements to unmarried fathers. While it is possible that providing better safeguards to biological fathers could help to avoid heartache later, as in the Cherokee case mentioned above, these policy decisions are currently thought to fall within the prerogative of state governments.

Through ICWA, tribes also exercise jurisdiction over child welfare. The fact that a tribal or state court takes the time to notify Indian parents (including unwed fathers), or tries to keep a family together (though efforts at reunification), does not violate the law or norms of equal protection. Tribal courts, like all courts, look closely at the best interests of the child. They are particularly well-suited to evaluate placements in tribal families, as well as special concerns about the trafficking of Indian children. When it’s best for an Indian kid to have a non-Indian placement, a tribal court is able to make that decision. That’s precisely what happened when the Supreme Court sent the case of Mississippi Choctaw Indians v. Holyfield back to the tribe: the tribal court affirmed the placement of Choctaw twins with a non-Indian family, deciding that it was in the twins’ best interests to do so.  

If a custody proceeding takes place in state court, ICWA (just like the laws of 45 states) prioritizes placement with “a member of the child’s extended family.” Extended family members need not be “Indian” in order to qualify, a point illustrated by the recent case where a Choctaw child was placed with her sister and non-Indian family members in Utah. If an extended family member is not available, ICWA turns next to members of the child’s tribe and then to other Indians. These standards recognize that, in tribal communities the concept of “relatives” includes people beyond the biological family, including members of other tribes.  

Evidence of systemic failure to comply with ICWA has recently motivated reform as well. New regulations from the Bureau of Indian Affairs provide guidance to states courts and agencies regarding child abuse, neglect, and adoption cases involving Indian children. The federal agencies responsible for Indian health, juvenile justice, and child welfare are, for the first time, formally coordinating their duties to Indian children. Tribes are redoubling their efforts to recruit and regulate tribal foster care families, administer programs supporting children, and work with states in cooperative approaches to child welfare. These reforms are all welcome and necessary for restoring Indian civil rights (and human rights) lost during earlier periods of harmful intervention by government, institutional, and religious actors alike.

Finally, while the lead essay would seem to call for a cultural affiliation test, most courts have rejected such standards as impossible to administer, inconsistent with the political status of tribes, and oblivious to the fact that today’s Indian families are living with a legacy of forced cultural assimilation that necessitated ICWA’s passage in the first place.

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No one is subject to ICWA merely because her great-great-great-great grandfather was Choctaw. It is meaningless to describe a child as “1/256th Cherokee.”  ICWA provides important legal protections to children who are eligible for citizenship in a federally recognized Indian tribe and affirms their individual rights under tribal and federal law. May we see them dancing in the light and love of their families.

 

Note

[1] In Adoptive Couple v. Baby Girl, 398 S.C. 625, 649, 653–655 (2012), the South Carolina Supreme Court noted the biological father was a fit and loving parent, and placement in his home provided the child with the familial and tribal connections that ICWA meant to facilitate. Justice Scalia wrote in the Supreme Court case: “This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.” Adoptive Couple v. Baby Girl, 133 S.Ct. 2552, 2572 (2013) (Scalia, J., dissenting).

Also from This Issue

Lead Essay

  • Treat Children as Individuals, Not as Resources by Timothy Sandefur

    Timothy Sandefur charges that the Indian Child Welfare Act renders children of Native American ancestry the only ones in the entire country against whom it is legal to racially discriminate. Not only that, but the racial discrimination at hand is being conducted by the government of the United States, and it often seriously harms the children involved. U.S. law typically attempts to realize the best interests of the child, but the ICWA abandons that standard. It declares that many genetically Native American children are “tribal resources,” even if they lack any cultural or emotional attachment to a tribe or its members. Sandefur documents several cases of serious abuse that have followed from this law and recommends reform.

Response Essays

  • Limit Government Intrusion in Indian Families’ Lives by Matthew L. M. Fletcher

    Matthew L. M. Fletcher argues that the Indian Child Welfare Act has done a great deal of good by allowing Native Americans to preserve both their culture and their families. And this has not come at the cost of children’s well-being; numerous child welfare advocacy groups regard the ICWA as the “gold standard” for child welfare and even recommend that its provisions be extended to all children. Fletcher rebuts the charge that the ICWA was to blame for a recent, high-profile child custody dispute, and he laments that casual racism against Native Americans continues down to the present day.

  • This Isn’t the Way to Protect Families’ Rights by Walter Olson

    Walter Olson agrees that the Indian Child Welfare Act is “an exceedingly bad law,” but he suggests that much of the rest of our child welfare system is flawed as well. The “best interests of the child” standard can lead to costly and exacting legal battles over just how good a particular parent may be. This is a nightmare for anyone, of course, but it hurts the poor the worst. Turning to the ICWA, Olson agrees that it commonly disregards individual rights and treats individuals as resources for a community with which they have no acutal affiliation. The ICWA puts tribes’ interests ahead of both those of children and parents, and it protects American Indian ethnicity while ignoring other ethnicities that a child may also have, and may even identify with more closely.

The Conversation