A Civics Lesson

            In the 1830s, Michigan Anishinaabe ogimaag (leaders) such as Leopold Pokagon and Aishquagonabee negotiated treaties with American leaders that reserved homelands within Anishinaabeki (the lands of the Anishinaabe people), acknowledged tribal governmental authority, and obligated the United States to protect tribal self-government. The modern tribal communities that survive today because of the foresight of the ogimaag nearly two centuries ago are encouraging the Anishinaabeg (Odawa, Ojibwe, and Bodewadmi people) to speak in their language, Anishinaabemowin, govern in accordance with their laws, inaakonigewin, and to act in accordance with Anishinaabe ethics and morality, mino-bimaadziwin. The treaties still serve as the template for the federal-tribal relationship in the modern era. Federal Indian law statutes such as the Indian Child Welfare Act (ICWA) are the manifestation of federal obligations to Indian tribes.


Indian Tribes are Nations

            Indian tribes are nations. Indian tribes have existed since time immemorial and predate the formation of the United States. The Framers of the Constitution wrote Indian tribes into the text of the Commerce Clause and explicitly acknowledged tribal nationhood. From the earliest days of the American republic, the United States exercised its treaty power and entered into more than 400 treaties with Indian tribes. Most of the terms of those treaties remain law, the supreme law of the land under the Supremacy Clause, as Chief Justice Marshall held centuries ago. The relationship between the United States as superior sovereign and Indian tribes as domestic nations is best analogized as a trust relationship, with one sovereign coming under the protection of a superior sovereign.

            The meat of the trust relationship is that the United States guarantees to Indian tribes their right to make their own laws and be governed by them. In those hundreds of treaties and numerous federal statutes and regulations, the federal government also guarantees public safety, law and order, health, housing, and a full menu of government services to Indian country. Since the 1970s, the United States and Indian tribes have engaged in the modern version of their longstanding government-to-government relationship through the negotiation and administration of self-determination and self-governance compacts – not unlike treaties – that manage the governance of Indian country.

            As nations, Indian tribes have adopted citizenship criteria that fit within the modern liberal traditions of jus sanguinis and jus soli. Jus sanguinis refers to citizenship determined according to the citizenship of a child’s parents, or through blood; jus soli refers to citizenship determined according to the location of a child’s birth, or through soil. Indian tribes as domestic nations that have suffered through centuries of land dispossession, forced removal and separation of Indian families, and cultural, religious, and political ethnocide have brilliantly adopted citizenship requirements that allow for a non-racial legal and political status not confined to territorial communities. Each Indian tribe adopts its own citizenship criteria though its particular political process that takes into consideration the tribe’s land base, political traditions, and familial customs. Tribal law allows for Indian people who wish to be tribal citizens to live wherever they like and to still maintain their political connection to their tribes.


Tribal Law

Indian tribes act to preserve tribal cultures and languages, restore tribal lands and sacred sites, and to serve and protect tribal citizens, wherever they are located. Consider Indian child welfare. Tribal involvement in Indian child welfare on and off reservation was the law long before the enactment of ICWA. ICWA merely clarifies the relationship between tribes and states, and instructs the states that tribal law may be dispositive in certain cases.

The laws of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB) in Michigan are typical. When a tribal social services provider is notified that a child on tribal lands is in need of emergency services because of abuse or neglect, the tribal government acts in accordance with tribal law “[t]o take such actions that will best serve the spiritual, emotional, mental, and physical welfare of the child and the best interest of the Tribe to prevent the abuse, neglect and abandonment of children.” 10 GTB Code § 105(e). Tribal law determines procedures and standards for when a tribe will intervene in an off-reservation case, and for when the tribe will seek a transfer to tribal court:

When determining if and when a Motion to Transfer Jurisdiction to Tribal Court is appropriate, the presenting officer shall consider: (1) The best interests of the child; (2) The best interests of the Tribe; (3) Availability of services for the child and his or her family; (4) Prospects for permanent placement of the child; and (5) Conservation of tribal resources.

10 GTB Code § 105(e). Tribal law then requires the tribal court to make an even more searching inquiry in deciding whether to accept the transfer:

The Tribal Court shall consider the following factors: (1) The best interests of the child; (2) The best interests of the Tribe; (3) Availability of services for the child and his or her family; (4) Prospects for permanent placement for the child; and (5) Conservation of tribal resources. (6) The family’s ties to the GTB or other Indian community.

10 GTB Code § 105(g). The code also expansively defines “best interests of the child”:

“Best Interests of the Child”: As used in this Code, the sum total of the following factors to be considered, evaluated, and determined by the Court: (1) The love, affection, and other emotional ties existing between the parties involved and the child. (2) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any. (3) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this Tribe in place of medical care, and other material needs. (4) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. (5) The permanence, as a family unit, of the existing or proposed custodial home or homes. (6) The moral fitness of the parties involved including the criminal history of any person living in the same household as the minor child. (7) The mental and physical health of the parties involved. (8) The home, school, and community record of the child. (9) The reasonable preference of the child, if the Court considers the child to be of sufficient age to express preference. (10) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. (11) Domestic violence, regardless of whether the violence was directed against or witnessed by the child. (12) Any other factor considered by the Court to be relevant to a particular child custody dispute. (13) The willingness to provide the child with a strong cultural identity and to expose the child to the customs, values and mores that may form the child’s cultural background.

10 GTB Code § 102(d). Finally, the confidentiality of the proceedings to protect the privacy of the families involved in child welfare proceedings is paramount to the Grand Traverse Band. 10 GTB Code § 618. This is an example of mino-bimaadziwin.

In determining whether to intervene in a case involving an Indian child, or whether to seek transfer to tribal court, the Grand Traverse Band engages in a searching, meaningful analysis of the best interests of the child. The best interests of Indian children drive the legal analysis for all the tribes involved in the high profile cases discussed in this series, including the Cherokee Nation of Oklahoma and the Choctaw Nation of Oklahoma.


Law versus Rhetoric

This civics lesson rebuts the rhetorical essays of Mr. Sandefur and Mr. Olson, which at bottom carelessly misstate the reality of Indian tribes, federal Indian law, and the purpose of federal statutes that outline the contours of Indian law. Ironically, the even the real cases that Mr. Sandefur and Mr. Olson suggest are the best attacks on ICWA are cases that would not have been difficult if the parties had complied with ICWA’s procedural protections in the first instance.

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, including Anishinaabeki, 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, including Anishinaabemowin, 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.

Also from this issue

Lead Essay

  • 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

  • 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.

  • Professor Kristen Carpenter explains the rationale for the ICWA and argues that it is not a piece of racial legislation. Rather, it respects the previously made determinations of the United States government about who is eligible for membership in Indian tribes, and it has proven in general to be an effective tool for opposing the forced assimilation policies that have done so much harm to Indian tribes’ culture in the past. Anecdotes of one case of child custody or another are unhelpful, she maintains, while the data shows that ICWA is generally working well, and that problems generally come from noncompliance or from other, unrelated factors.

  • 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.