A History Lesson

American Indian tribes and the communities and polities they cultivate serve Indian children and families in ways that are respectful and culturally competent. Each of the 567 federally recognized Indian tribes have established their own public policies and legal structures, but perhaps their greatest advantage over state systems is that they have the time to deal with each family individually and with dignity.

That’s a fairly recent development. For most of American history, Indian children have been pawns of the power politics of adults. For opponents of tribal self-determination and the Indian Child Welfare Act, they still are.


From War Hostages to Boarding Schools

Outsiders long have sought to strip Indian tribes of their children. In the first protracted war between Indian tribes and the United States, fought in the years immediately following the end of the Revolution, American leaders explicitly ordered their military leaders to kidnap Indian children and hold them as hostages. Kidnapping Indian children and holding them as hostages was, by then, a centuries old military strategy used by European powers since at least the war of extermination against the Pequot Nation in the seventeenth century.

In times of peace, outsiders continued the strategy of stripping Indian children from their families and homelands. Federal Indian affairs officials obligated by treaty to educate Indian children funneled federal funds to religious organizations, entities that actively lobbied to receive the funds, to establish Indian schools. At first, the churches set up the schools inside of reservation communities as day schools, but they were dissatisfied with the influence of Indian families on their children. The churches quickly transitioned to off-reservation boarding schools to separate Indian children from their families and their cultures. These church-based Indian boarding schools, which operated loosely from the mid-nineteenth century to the mid-twentieth century, notoriously punished Indian children for speaking their languages, cut Indian children’s hair and dressed the in uniforms, and taught them menial labor skills. President Ulysses Grant’s Peace Policy introduced the militarization of Indian boarding schools. Like the church schools, these military boarding schools punished Indian children for being Indian. These were compulsory schools. Federal officials could withhold rations from Indians if they didn’t turn over children. And they could kidnap children, placing them in tiny handcuffs to drag them to school. Indian tribes or parents that attempted to keep their children at home could be severely punished. Proponents of Indian boarding schools were reformers, people trying to save Indians from themselves.

The legacy of these schools may never be completely known, but there are shocking elements. The Saginaw Chippewa Indian Tribe’s investigation of the grounds around the Mount Pleasant Indian Boarding School, closed in 1934, uncovered dozens of bodies of Indian children buried in unmarked graves. The tribe’s investigation confirmed what has been shown to be true in so many other places like Carlisle, Haskell, and Holy Childhood in Harbor Springs, Michigan – Indian boarding schoolyards were also mass graveyards of Indian children, buried in unmarked graves as they died from sickness or murder at school.

The stated philosophy behind these tactics was that Indian people were savages that needed to be civilized. The church schools hoped to convert Indian children from what they called paganism or heathenism to Christianity. The military schools wanted to the kill the Indian to save the man. Commentators expressly and continuously celebrated a perceived superiority of the non-Indian culture of Christianity over Indian cultures, which they argued were doomed to become extinct.


From Emergency Removal to Adoption

In the mid-twentieth century, as the federal funding for Indian boarding schools waned, federal dollars for state child welfare bureaucracies began to rise. The states’ paradigm shifted away from the federal policy of housing all Indian children in schools to identifying Indian children in need. Some state agencies concluded that any Indian child living in Indian country was, by definition, an Indian child in need. Once again, there were kidnappings. The private adoption market was also on the rise. And the churches didn’t go away. They transitioned into child welfare service providers and private adoption providers.

State workers and adoption agencies were reformers, trying to save Indians once again. They saw Indians living in poverty, and thought Indian children should be saved from poverty. Their solution was removal from their families, and adoption to off-reservation non-Indian families. State governments and their private market adoption partners removed “an alarmingly high percentage” of all Indian children in the middle decades of the twentieth century and shipped them off to non-Indian families. States and adoption agencies were not doing this to any other group of people, just Indians. Other families went through removals of their children because of abuse and neglect, but states and their adoption industry partners explicitly justified removals of Indian children by reference to their status as Indians.

Meanwhile, federal Indian policy shifted dramatically to tribal self-determination. Indian tribal governments that had been under the thumb of federal bureaucrats or simply ignored by the United States began to restore their government structures. The Indian Child Welfare Act of 1978 continued federal support of tribal self-governance and attempts to stanch the wholesale removal of Indian children. Over four decades later, ICWA is a work in progress. State appellate courts and legislatures in general take ICWA and tribal self-determination seriously, a massive sea change from the 1970s, though compliance with ICWA in state trial courts and in state agencies is poor.


What Tribal Self-Determination Means in Child Welfare

Tribal self-determination means that Indian tribes can and do make their own choices. Technical assistance providers from entities like the National Council of Juvenile and Family Court Judges have observed state and tribal court child welfare matters and reviewed their court records. These observers note that data collection from state court records is fraught with error – the records are rarely complete, for example, one likely cannot tell from state court records who was present in the courtroom for a hearing. State court child welfare hearings might last for only a few minutes. Most of the work in state court is done between the lawyers, social workers, and the judge, on the spot. Parents, children, and foster parents usually have no understanding of the proceedings. Conversely, at tribes like Pokagon Band of Potawatomi Indians, these same outside observers are shocked to see hearings that may last hours. The judge addresses the parties by name, makes eye contact, and holds both the lawyers and the families accountable. Hearings continue until each and every stakeholder completely understands the process and their obligations going forward. Even before the hearing, the stakeholders and the judge meet informally for an hour or two to brainstorm ideas on how best to help children in need.

Both states and tribes say they take the best interests of the child seriously, but the tribal process is real. Generally most tribal dockets are much smaller than state dockets. If they don’t receive Title IV-E funding (like Pokagon, for example), they are not bound by the rather draconian, federally imposed timelines state courts are. For the most part, the state court judges are deeply frustrated by a process dictated by budgets and timelines rather than by what is best for families. Conversely, tribal judges are excited and empowered to use different approaches to child welfare. Their biggest frustration is when they are told they have to conform to the standards that have broken state systems in order to access funding.


About Those Calls for More Foster Care

Reformers are still trying to save Indian children by taking them away from Indian families and tribes. Mr. Sandefur would rather force Indian children into state court systems by undoing ICWA, perhaps because they can be more easily plucked from state systems by the private adoption market. There have even been calls to greatly expand the number of Indian children in foster care. Literally no ethical person seeks to put more children in foster care. Studies show what should be inherently understood—plucking children out of a community they know and putting them in stranger foster care is actively harmful to kids (there’s a reason Casey Family Programs is putting a billion dollars into reducing the number of kids in foster care). Eighty percent of child welfare removals are due to neglect. Our children do deserve better: better services, better wrap around care, a better understanding of the mental health issues and chemical dependency that plagues their parents. They don’t deserve to be taken from everything familiar—their neighborhood, schools, and extended family—because of system failures in our society.

Imagine a child welfare proceeding where the judge meets with the parties for two hours before the hearing to engage in problem solving and to brainstorm creative ideas to best serve the child, followed by a formal hearing that may last two or more hours. Compare that to a state court hearing that lasts mere minutes, and where there are systematic financial pressures for “permanency,” in other words, to place children in foster care, terminate parental rights quickly, and adopt them out. It’s not even a comparison.

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.