FEDERAL INDIAN LAW IN THE STATE DISTRICT COURTS The Policy Behind the Indian Child Welfare Act

The Cherokee Indian Reservation is called the Qualla Boundary. The Qualla Boundary comprises the largest Indian Reservation east of the Mississippi River, with 56,000 acres, more or less in Jackson, Swain, Graham and Cherokee Counties.

As of May 10, 2006, there were 13,598 enrolled members of the Eastern Band of Cherokee Indians. 7,590 of those enrolled members live on the Qualla Boundary. The rest live all over the world.

562 Federally recognized Tribes “In four consecutive censuses, which showed other groups growing by 7 to 10 percent, Native American populations soared, growing by more than 50 percent in 1970, by more than 70 percent in 1980 and another third in The 2000 census reveals an overall doubling, to more than four million.” Jack Hitt, “The Newest Indians,” The New York Times Magazine, August 21, 2005, p. 38.

“Jack D. Forbes, an emeritus professor of Native American studies at the University of California at Davis, argues that undercounts and other census quirks may mean that the total number of Indians in the United States today is in fact closer to 15 or even 30 million.” Id.

“Using the 2000 census data, Indians can be called America's fastest-growing minority.” Id.

So, y’all, as District Court Judges, are going to encounter Native Americans in your Courtrooms increasingly. And that means you are going to encounter the Indian Child Welfare Act (ICWA) as well.

The Indian Child Welfare Act 25 U.S.C. § 1901, et seq.

We can go through the statute, bit by bit, but I think it might be more interesting to look at the highlights of major significance to you and then examine the backstory, the policies behind this legislation.

“An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe…” 25 U.S.C. § 1911(a)

If the Indian child lives off of the Reservation, and a DSS action regarding the child is brought in the District Courts then this law applies:

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, that such transfer shall be subject to declination by the tribal court of such tribe.

Also, both the individual Indian parent(s) as well as the Tribe, have a right to intervene in the State Court proceedings “at any point”: 25 U.S.C. § 1911(c).

Preference shall be to place removed children with Indian relatives, Tribal members or other Indian families. The standards for meeting these preferences “shall be the prevailing cultural standards of the Indian community” in question.

This puts very unusual burdens on the District Courts, first and foremost of which is the requirement that the District Courts must be race conscious, when we are all trained rigorously from law school on to be race neutral.

Another burden on the District Courts is the requirement that the Indian Tribe of which the child might be a member must be notified. As you can imagine, this may not be a simple matter.

Finally, the Court has to implement the cultural standards of the Tribe in question, which may be a Tribe from the desert Southwest, the Pacific coast, or somewhere in between.

The Indian Child Welfare Act is perhaps the most obvious evidence of a sea change on the part of Congress with regard to the government’s relations to the Indian Tribes.

Beginning with the removal of the Eastern Tribes from their ancestral homes in the 1830’s to the termination of entire Tribes as recognized bands of Indians in the 1950’s, the government embarked on more than a century of what can only be described as ethnic cleansing.

Removal of the Eastern Indians was the first step. This included the infamous “Trail of Tears,” one of the most shameful governmental operations in our proud history. The frontier shrank rapidly, though, and different measures were needed to address concerns about American Indians.

In 1871 Congress declared that it would no longer enter into treaties with the Indian Tribes, thus ending the Treaty Era.

Assimilation of Native Americans into the dominant culture became Congressional policy. One example of this was The Dawes Act Or the General Allotment Act of 1887.

The idea behind the Dawes Act was to turn reservations into fee lands which could be transferred by individual Indians. You can guess what the result of this was.

Another, more pervasive, effort was the removal of Indian children from their parents for placement within white society.

“A great general had said that the only good Indian is a dead one… I agree with the sentiment, but only in this: that all the Indian there is in the race should be dead. Kill the Indian in him and save the man.” --Captain R.H. Pratt, Superintendant, Carlisle Indian Boarding School

Another effort was forced conversion to Christianity. This had the effect of deconstructing Tribal cultures.

This policy continued well into the 1960’s. Our Juvenile Court Counselor well remembers Indian children being removed from their homes by well meaning Social Workers and placed with white families in the 1950’s and ’60’s.

Unfitness could be found and children removed from the Qualla Boundary for such things as foraging for wild greens or dressing an animal inside the home.

St. Mary’s Mission School, 1959 Colville boys pray before bedtime with Fr. Keyes, St. Mary's Mission School, Omak, Washington, 1959

Colville Girls Performing the Crowing of the Blessed Virgin at St. Mary’s Mission School in Washington, 1959

I don’t know what it is like in other places, but there is a whole generation of Cherokees in North Carolina who did not teach their children the Cherokee language, because the parents were beaten in boarding school for speaking it.

All of this is to illustrate that, with the Indian Child Welfare Act, and the Indian Civil Rights Act and other legislation, the assimilation period is over. Congress has recognized, finally, the utility of maintaining strong Indian Tribes in this country.

The ICWA burdens, then, on the District Court, are really a reflection of Congressional thought designed to redress over a century of policies created to eliminate the uniqueness of Indian culture and way of life.