Mar 082022
 
roland, fishing, son

In Support of Brackeen

Adapted from the thesis Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act,’
by Elizabeth Morris*

PDF: The Indian Child Welfare Act: An Unconstitutional Attack on Freedom 

The Fifth Amendment to the United States Constitution provides that: “No person shall be…deprived of life, liberty, or property, without due process of law…” and the Fourteenth Amendment, Section 1, states “nor shall any State deprive any person of life, liberty, or property, without due process of law...” (Congress 1787).  But for almost 200 years, the U.S. federal government has assumed a power that deprives members of federally recognized Indian tribes of these privileges – and for almost a century, the federal government has claimed wardship over U.S. citizens who happen to be tribal members.

Yet, despite the nineteenth century U.S. federal court rulings that propagated this view, disagreement continues as to whether tribes located within the United States are indeed sovereign, whether Congress has plenary power over them, and whether individual tribal members have U.S. Constitutional rights.

  • Some tribal officials argue that international law should not have been forced upon non-European cultures that had no say in it. Others point to natural law and international law – the grounds for treaties between nations – as basis for uninterrupted tribal sovereignty.
  • Some tribal representatives argue that the Constitution has no authority over tribes or tribal members. Others cite the Constitution when seeking judicial redress for their community.
  • Some historians say the Constitution never gave Congress anything more than the power to regulate trade with tribes. Others claim the Constitution not only gave Congress total and exclusive plenary power to decide almost every aspect of life in Indian Country – but by unstated extension, gave the executive branch this power as well.
  • Some say treaties promise a permanent trust relationship. Others point out that most treaties have clearly specified final payments of federal funds and benefits and were written and signed with clear intent for gradual assimilation.

Where Does the Plenary Authority of Congress Come From?

Law professor Robert G. Natelson writes, “For many years, Congress has claimed, and the Supreme Court has conceded, a plenary power over American Indian tribes” (2007, 204).  But, according to Natelson, there are problems with how historical documents have been construed.  Legal scholar Matthew L. M. Fletcher agrees and notes that the origin of federal authority over Indian tribes is unclear, as the Constitution carried no “clear textual provisions” concerning such power. Due to that lack, the Supreme Court has created a body of “unwritten constitutional law” (Fletcher 2006, 654).  Supreme Court Justice Stephen Breyer’s 2004 majority opinion in United States v. Lara is an example of Congressional authority in dealing with Indian affairs being categorized as “beyond the strictures of the Constitution” (Fletcher 2006, 656).

Authority is not Inherited from Britain

This unwritten authority, according to Natelson, is said by some to have been inherited from the British Crown, which transmitted “extraconstitutional sovereign authority to the Continental Congress, which then passed it to the Confederation Congress, which in turn conveyed it to the federal government” (2007, 204). However, Natelson argues:

As a matter of historical record, the British Crown did not transfer its foreign affairs powers to the Continental Congress, but to the states. The Confederation Congress did not receive its authority from the Continental Congress, but from the states. The federal government did not receive its powers from the Confederation Congress, but from the people (R. Natelson 2007, 205-206).

Natelson further contends that case law does not support the doctrine of inherent plenary authority. The Supreme Court “has acknowledged the [plenary] theory, but only rarely and in limited respects” (R. Natelson 2007, 204). He added, “The Supreme Court’s reluctance to fully accept inherent sovereign authority is understandable, for the doctrine is fundamentally unconvincing. It clashes with the Constitution’s underlying theory of enumerated powers and would render some enumerated powers redundant.” (R. Natelson 2007, 205).

Natelson explained that the dicta of Chief Justice Marshal and others has frequently been cited as recognizing Congress’s plenary authority over Indian Affairs – but it does not (R. Natelson 2007, 204). Other cases often cited are similarly lacking.  “A passage in Chief Justice Taney’s opinion in Dred Scott v. Sandford[1] suggests an inherent sovereignty theory, but later in the opinion Taney made it clear that he was invoking an enumerated power” (R. Natelson 2007, 204).   Natelson explained further, “Kansas v. Colorado (1907),[2] the Supreme Court’s clearest pronouncement on inherent sovereign authority in internal affairs, actually rejected the doctrine. United States v. Curtiss-Wright resuscitated it, but only for foreign affairs. In 2004, the Court suggested an application to Indian concerns, but the Court’s language was neither definitive nor necessary to its decision” (R. Natelson 2007, 205).

Lastly, if inherent authority had in fact existed in any context when the federal government was created, Natelson clarifies its fate: “[T]he doctrine of inherent sovereign authority is simply contradicted by the text of the Constitution. Any extra-constitutional authority inhering in the federal government in 1789 was destroyed two years later, when the Tenth Amendment became effective. By its terms that Amendment precluded any federal power beyond those bestowed by the Constitution… precisely to re-assure Anti-Federalists who feared that the new government might claim powers beyond those enumerated” (R. Natelson 2007, 206-207).

Authority is not from the U.S. Constitution

Another theory is that plenary authority comes from within the Constitution itself. Several Constitutional powers are suggested, including the War Power; the Executive Power; the Necessary and Proper Clause; the Treaty Clause; the Territories and Property Clause; and the Indian Commerce Clause.  However, Natelson contends “…[M]ost of those provisions can be readily dismissed” (R. Natelson 2007, 207).  For example, Natelson states that if it were true that the Territories and Property Clause, were the source of plenary power:

…then legal title to this land is federal ‘property’ subject to congressional management under the Territories and Property Clause, and such title would give Congress at least some jurisdiction over the minority of Indians who reside on reservations. But this begs the question of the source of authority for holding reservation land in trust. As already noted, pre- or extraconstitutional power is not a viable answer. Nor, as originally understood, is the Territories and Property Clause, for that Clause originally granted Congress the unlimited power to dispose of federal lands within state boundaries, but not the unlimited capacity to retain or acquire such lands. As for the treaty power, it happens that not a single Indian treaty provides that the government has retained or acquired trust title to the reservation. The sole references to trust arrangements in Indian treaties are peripheral provisions, such as temporary trusts incident to sale and trusts to fund Indian schools and other amenities (R. Natelson 2007, 209-210).

Just one theory for the origin of plenary power remains. Felix Cohen, in his ‘Handbook of Federal Indian Law,’ states that Congress has power over tribes through the Indian Commerce Clause as long as members are wards of the government (Cohen [1942] 1971, 353). A large body of law has been written in support of this.

Authority is not from the Commerce Clause, specifically

The United States Constitution was written to protect the lives, liberty, and property of the People.  As part of that protection, the Constitution needed to clarify roles and responsibilities necessary for the promotion of a stable and productive economy. The founding fathers understood that regulation of commerce was a proper function of government, and regulation of interstate and international commerce was a proper function of federal government. Article 1, Section 8 of the United States Constitution enumerates the powers vested in the federal government to regulate commerce between lower and foreign political entities:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes… (Congress 1787). [stresses added]

The commerce clause is one of the Constitution’s central pillars. It prevented states from setting up trade barriers, while at the same time not giving the federal government complete power.  In protecting markets, the commerce clause is at the heart of what has become one of the “largest common markets in the world” (Weingast 1995, 8). But this clause also contains one of the limited mentions of tribes within the Constitution.  The third point within the Commerce Clause refers to Congress’ power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (Congress 1787, Art. 1 Sec 8).

The United States Constitution goes on to reserve all other rights and powers to the people and to the States. Amendment IX declares that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and Amendment X declares “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (Congress 1787).

Despite these clarifying amendments, the Bureau of Indian Affairs claims “Article 1, Section 8 of the United States Constitution vests Congress, and by extension the Executive and Judicial branches of our government,” with exclusive authority over the tribes (BIA, 2013). Constitutional Law Attorney Philip J. Prygoski also affirms Congress’s constitutional power to regulate commerce with tribal governments and states the “Indian Commerce Clause” is the primary power source and vehicle for Congress to define tribal sovereignty (Prygoski 2015).

Yet Natelson asks, “[W]hy were treaties understood for so long as the principal method of dealing with tribes if Congress could regulate all affairs under the ICC?” (R. Natelson 2019). Indeed, why were treaties necessary if the Constitution had already given Congress power over the tribes?

In his historical research, Natelson found that the “drafting history of the Constitution, the document’s text and structure, and its ratification history all show emphatically that the Indian Commerce Power was not intended to be exclusive” to the federal government. He further notes, “Throughout the Colonial and Revolutionary period, colonies and states frequently entered into treaties with Indians within their territorial limits. New York even appointed treaty commissioners after the Constitution had been issued and ratified” (R. Natelson 2007, 223).  Founding Fathers, Thomas Jefferson, and William Samuel Johnson, also alluded to this state authority to regulate commerce with Indian tribes inside their borders (R. Natelson 2007, 225).

State authority over commercial regulation aside, United States v. Kagama (1886)[3] “rejected the Indian Commerce Clause as a source of plenary congressional authority” (R. Natelson 2007, 210).  The Supreme Court stated “it would be a ‘very strained construction’ of the Commerce Clause to conclude that it authorized creation of a federal criminal code for Indian country” (R. Natelson 2007, footnote 65, at 210 ).  Kagama  “did recognize unenumerated federal power over Indian affairs, but the Court’s justification was Indian dependency on the federal government, not inherent sovereignty” (R. Natelson 2007, 204-205).

Patent attorney Nathan Speed notes that when Congress first began asserting authority over tribes beyond trade, the Indian Commerce Clause was not cited as the source of that authority.  Further, the Supreme Court rejected the claim that the Clause was the source of plenary power over tribes (Speed 2007).

Nevertheless, according to Cohen, the Clause has become “the most often cited basis for modern legislation regarding Indian tribes” [ (LexisNexis 2005, 397) ] In the case Cotton Petroleum Corp. v. New Mexico, (1989), it was stated that “the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs” (R. Natelson 2007, 211).

Many have argued that the Founding Fathers intended the word “commerce” within the cited clause to refer not just to merchant trade, but to all economic activity and even beyond to any and every transaction.  Natelson contends that a meaning that expansive would not belong in a list of ‘enumerated’ powers. However, this argument persists, and being so pervasive, several studies have recently examined how the word was employed in constitutional, lay, and legal contexts “before and during the Founding Era” (R. Natelson 2007, 214).

Those studies[4] found that “‘commerce’ meant mercantile trade, and that the phrase ‘to regulate Commerce’ meant to administer the lex mercatoria (law merchant) governing purchase and sale of goods, navigation, marine insurance, commercial paper, money, and banking (R. Natelson 2007, 214). Natelson states:

In both lay and legal discourse in the 18th Century, the term “commerce” “was almost always a synonym for exchange, traffic, or intercourse. When used economically, it referred to mercantile activities: buying, selling, and certain closely-related conduct, such as navigation and commercial finance (2006).

Justice Clarence Thomas, in his concurrence in United States v. Lopez, (1995)[5], agreed, stating:

At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes. See 1 S. Johnson, A. Dictionary of the English Language 361 (4th rev. ed. 1773)[6] (defining commerce as “Intercourse; exchange of one thing for another; interchange of anything; trade; traffick”); T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (“Exchange of one thing for another; trade, traffick”). This understanding finds support in the etymology of the word, which literally means “with merchandise.” See 3 Oxford English Dictionary 552 (2d ed. 1989) (com–“with”; merci–“merchandise”). In fact, when Federalists and Anti Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably (United States v. Lopez 1995).

Thomas quoted his Lopez comments in his concurrence in Adoptive Couple v. Baby Girl (2013), and added, “The term ‘commerce’ did not include economic activity such as ‘manufacturing and agriculture,’ ibid., let alone noneconomic activity such as adoption of children” (Adoptive Couple v. Baby Girl 2013). Thomas also cited Natelson nine times in his concurrence.

“Thus,” Natelson writes, “‘commerce’ did not include manufacturing, agriculture, hunting, fishing, other land use, property ownership, religion, education, or domestic family life.” In fact, the Federalists during the Constitution’s ratification explicitly maintained that “all of the latter activities would be outside the sphere of federal control” (R. Natelson 2007, 214-215). He adds in his article concerning the legal meaning of the Commerce Clause, “The fact that other uses of the term “commerce” existed during the pre-ratification and post-ratification periods, does not change the accepted general meaning of the word ‘commerce’” (R. G. Natelson 2006, 789, 811)

Finally – and most obvious – the word ‘commerce’ could not have had a broader meaning for Indian tribes than it had for States and foreign Nations, which are located in the exact same clause (R. Natelson 2007, 215). Natelson notes, “I have been able to find virtually no clear evidence from the Founding Era that users of English varied the meaning of “commerce” among the Indian, interstate, and foreign contexts” (R. Natelson 2007, 216).  The United States government has not asserted plenary jurisdiction over state and international actors in the same manner it has tribes and tribal members.

Natelson further asks “If a broad power was intended, why use the same word for Indians as was used for foreign nations and interstate commerce? Why not use instead the readily available and traditional phrase ‘Indian affairs’?” After all, he notes, the writers of the Constitution were meticulous in the word usage and “knew about the presumption of the same word not changing meaning” (R. Natelson 2019). Natelson wrote in 2019:

Edmund Randolph’s list of powers that can be exercised under the Commerce Clause with foreign nations, interstate commerce, and Indian tribes is a list of examples of common kinds of regulation within the three categories.  It does not define different scopes. For example, Randolph speaks of restricting the travel of merchants with the Indians, but he could have used exactly the same example for merchants with foreign countries, as in the case of embargoes (R. Natelson 2019).

Attorney Krystal V. Swendsboe concurs, quoting Vielma v. Eureka Co.,[7] “When the terms of a statute are ambiguous, we will employ cannons of statutory construction to discern the legislature’s intent…In the absence of some indication to the contrary, we interpret words or phrases that appear repeatedly in a statute to have the same meaning’(citations omitted) ” (Swendsboe 2019) and in Clark v. Martinez,[8] “To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one” (Swendsboe 2019).

Assistant Professor of Law, Gregory Ablavsky, agrees and stated: “[T]he history of the Indian Commerce Clause’s drafting, ratification, and early interpretation does not support either ‘exclusive’ or ‘plenary’ federal power over Indians. In short, Justice Thomas is right: Indian law’s current doctrinal foundation in the Clause is historically untenable”  (Ablavsky 2015).

The final draft of the Constitution gave James Madison, a nationalist, less authority than he had wanted for the federal government and the ratification process reduced the powers even further. But even with this, not even Madison “suggested granting Congress plenary dominion over the Indians. His proposal was for Congress to ‘regulate affairs with the Indians’—to govern transactions between tribes and citizens. Yet this still was more than the convention, or the public, was willing to accept”  (R. Natelson 2007, 258).  Fellow delegate, John Rutledge of South Carolina, instead suggested to the Committee of Detail a federal power concerning Indians that “stripped down Madison’s proposal to a mere commerce power” (R. Natelson 2007, 258).

Among the issues defined by the Federalists as outside of congressional regulation (and therefore, under state jurisdiction) were “crimes malum in se (except treason, piracy, and counterfeiting), family law, real property titles and conveyances, inheritance, promotion of useful arts in ways other than granting patents and copyrights, control of personal property outside of commerce, torts and contracts among citizens of the same state, education, services for the poor and unfortunate, licensing of public houses, roads other than post roads, ferries and bridges, and fisheries, farms, and other business enterprises” (R. Natelson 2007, 248-249).

To summarize, the Indian Commerce Clause was included to give Congress the power to regulate trade between tribes and non-tribal members.  It gave Congress the ability to override state laws, but not to abolish or alter “pre-existing state commercial and police power over Indians within state borders” (R. Natelson 2007, 265).  The Commerce Clause did not establish a ‘Trust status” authorizing a pupilage condition.  Nor did it grant Congress a plenary police power over tribal members or a license to interfere in Indian affairs.

Natelson concludes, “…the results of textual and historical analysis militate overwhelmingly against the federal government having any ‘inherent sovereign power’ over Indians or their tribes” and “…the Founders intended the states to retain their broad residual police power” (R. Natelson 2007, 266).

One of the most Damaging Results of Unconstitutional Congressional Authority: The Indian Child Welfare Act

Tribal member and Family Law Attorney Mark Fiddler examines the constitutional ramifications of the Indian Child Welfare Act through the lens of the case, Adoptive Couple v. Baby Girl, and various State ICWA laws.  He explains that one of the questions asked in Adoptive Couple was “if a birth father has no rights under state law, what specifically is it in ICWA that accords him greater federal rights?” (2014, 3).

The attorneys for the birth father and Cherokee Nation had argued that the constitutional issues did not apply and cited Morton v. Mancari, 417 U.S. 535 (1974), in which the Supreme Court had construed that preferential treatment for Native Americans was based on their unique political status, not on their heritage. Attorneys for Adoptive Couple, however, argued that “differential treatment predicated solely on “ancestral” classification violates equal protection principles” and cited Rice v. Cayetano, 528 U.S. 495 at 514, 517 (2000). When unequal treatment is predicated on a status unrelated to social, cultural, or political ties, but rather blood lineage, the ancestry underpinning membership is “a proxy for race.” Rice, 528 U.S. at 514.

Supreme Court Justice Clarence Thomas, in his Adoptive Couple concurrence, cited Professor Rob Natelson’s white paper concerning the Commerce Clause and the unconstitutionality of the ICWA. Justice Thomas explained he was construing the statute narrowly to avoid opening the door to rule the ICWA unconstitutional. But he noted, “In light of the original understanding of the Indian Commerce Clause, the constitutional problems that would be created by application of the ICWA here are evident. First, the statute deals with “child custody proceedings,” §1903(1), not ‘commerce’” (Adoptive Couple v. Baby Girl 2013).

While the court did not address the constitutional issues, Fiddler believes that “…at a minimum, Adoptive Couple stands as a clear signal from the Court that the application of ICWA, and perhaps other Indian preference statutes, cannot be based merely upon a person’s lineal or blood connection with a tribe. Something more is required. In Adoptive Couple, it was the requirement of parental custody” (Fiddler, Adoptive Couple V. Baby Girl, State ICWA Laws, and Constitutional Avoidance 2014, 7-8).

Families and children are not ‘commerce’ with Indian tribes and thus are not legitimately dealt with under the Indian Commerce Clause, yet tribal attorneys continue to claim ICWA is constitutional, and some assert a right to claim any child they choose as a member. In reference to Baby Girl, Chrissi Nimmo, Attorney General for the Cherokee Nation stated, “… we repeatedly explained that… tribes can choose members who don’t have any Indian blood” (Rowley 2015).

The increased push for jurisdiction over other people’s children has increased the push back from those who hold the ICWA is unconstitutional.  Swendsboe states in her amicus brief concerning the 2018 ICWA case Brackeen v. Bernhardt:

Because adoption proceedings like this one involve neither “commerce” nor “Indian tribes,” there is simply no constitutional basis for Congress’ assertion of authority over such proceedings. Also, the notion that Congress can direct state courts to apply different rules of evidence and procedure merely because a person of Indian descent is involved raises absurd possibilities. Such plenary power would allow Congress to dictate specific rules of criminal procedure for state-court prosecutions against Indian defendants. Likewise, it would allow Congress to substitute federal law for state law when contract disputes involve Indians. But the Constitution does not grant Congress power to override state law whenever that law happens to be applied to Indians. Accordingly, application of the ICWA to these child custody proceedings would be unconstitutional (Swendsboe 2019).

ICWA: Necessary for the Child’s Well-being …or the Tribal Government’s?

Often cited as justification for the ICWA is a 1998 pilot study by Carol Locust, a training director at the Native American Research and Training Center at the University of Arizona College of Medicine.  Locust’s study is said to have shown that “every Indian child placed in a non-Indian home for either foster care or adoption is placed at great risk of long-term psychological damage as an adult” (Locust, Split Feather Study 1998).

Referring to the condition as the “Split-feather Syndrome,” Locust claims to have identified “unique factors of Indian children placed in non-Indian homes that created damaging effects” (Locust, Split Feather Study 1998).  The Minnesota Department of Human Services noted “an astonishing 19 out of 20 Native adult adoptees showed signs of “Split-feather syndrome” during Locust’s limited study (DHS 2005). The MDHS did not mention that there were only twenty, hand-picked participants in the study. All twenty adoptees were removed from their biological families and placed with non-native families. There were no control groups to address other variables.

“Unfortunately,” according to Bonnie Cleaveland, PhD ABPP, “the study was implemented so poorly that we cannot draw conclusions from it.” According to Cleaveland:

Locust asserts that out-of-culture removal causes substance abuse and psychiatric problems. However, she uses no control group. She doesn’t acknowledge the high rates of trauma, psychiatric and substance abuse among AI/AN people who remain in their culture and among the population of foster children. These high rates of psychosocial problems could easily account for all of the symptoms Locust found in her subjects (Cleaveland 2015).

Cleaveland concluded, “Sadly, because many judges and attorneys, and even some caseworkers and other professionals, are not familiar with the research, results that may be very wrong are leading to the wrong outcomes for children” (Cleaveland 2015).

While supporters of ICWA often cite “Split-feather Syndrome” as proof the ICWA is in the best interest of children, and some children and families faced with foster care, adoption or child custody disputes have felt protection through the ICWA, others have felt forced into relationship with tribal governments – and some have been forced into dangerous, abusive homes  (Morris 2019, 194-221, 237-251)[9].

Federal government has focused on how the ‘child drain’ has affected tribal governments and the future of the tribe as an entity but has paid little attention to the children themselves: their needs, passions and diversity of individuals affected by federal Indian policy – many of whom have spiritual beliefs, political views, or parental practices unlike those promoted by the tribal government.  There is no acknowledgement that most of the children eligible for tribal membership are multi-racial and live outside of Indian Country. Not only are the views of individual tribal members dissimilar to each other, but it is also unarguable that children of slight tribal heritage have many more non-tribal relatives than they have tribal relatives – and might actually be bonded to non-tribal relatives.

The “best interest” that select federal agencies appear to be more concerned with is that of the tribal government.  The Obama administration’s ICWA rules in 2016 prejudicially assumed it is always in the best interest of a child to be under jurisdiction of tribal government, even if parents and grandparents have chosen to raise them in an alternative environment and worldview. The 2016 rules marginalize the rights of birth parents as well the reality of extended tribal and non-tribal birth family.

Yet, the Obama ICWA rules were long called for by tribal leaders.  Tribal governments, using ‘wardship’ and ‘trust relationship’ as revenue vehicles, requested Congress enact legislation giving increased control over certain vulnerable children to tribal governments and have repeatedly returned to DC to insist Congress make the resultant ICWA even more stringent – covering more people and closing all “loopholes” for escape. When some members of Congress recognized the overreach and constitutional implications of ICWA amendments and blocked them from passage, tribal leaders went to the White House to insist on the strict regulation of independent families through the executive branch – even going so far as to accuse some families of committing ‘fraud’ by not admitting they had tribal heritage.

Tribal leaders have also asked state governments to take responsibility for ensuring larger numbers of children and families remain within the reservation system – even if against the will of the children and families – and state governments have acquiesced.  Ironically, in doing this, tribal leaders, under the premise of strengthening jurisdiction over children of heritage, have essentially admitted their lack of it.  In going to Congress and the president with the expectation and demand that they do something about grounding enrollable children to the reservation system, tribal leaders have admitted they lack the authority and are willing to submit to the sovereign authority of the United States of America. They have also essentially admitted that the best interest of children and families are second to the best interest of the tribe as a corporation.

Conclusion

The national dilemma has become whether an individual’s right to privacy, constitutional equal protection, and freedom of association are of less priority than tribal sovereignty and the future of a tribe.

Too many within federal government choose to please political leaders and protect tribal interests and sovereignty rather than save children’s lives. The federal government has reduced children to the status of a ‘resource’ for tribal governments, just as the private property of individual tribal members has been relegated to the control of the BIA as a resource for tribal governments. Children are treated as material assets, and adults are treated as children. Throughout history and every heritage, various men have coveted power over others.  Today, tribal governments, while accepting and playing into Congress’ claim of plenary power, have themselves, also, claimed exclusive jurisdiction and authority over unwilling citizens. Tribal governments regularly lobby and petition both Congress and the White House to codify tribal jurisdiction over the lives, liberty, and property of everyone within reservation boundaries as well as some outside reservation boundaries.  While claiming to have exclusive jurisdiction, tribal governments have paradoxically requested and given blessing for the federal government to manage children of tribal heritage – asking Congress to write the Indian Child Welfare Act and the executive branch to write federal rules governing the placement of every enrollable child in need of care. Some tribal governments and supportive entities have gone further – asking even governors and state legislators to expand on and strengthen control over children with heritage.

Independent political communities have a legitimate right to determine their own membership. However, basing that determination on an individual’s heritage and then forcing the individual into political affiliation because of that heritage is the epitome of racism.  While family and community are important to children of every culture, tribal government claims that eligible children are lost without tribal culture infer there is something inherently different about children of tribal heritage as opposed to other children.  Recognition that children of every heritage are individuals with their own wants, needs and goals is quashed.

While it is unarguable that a certain amount of strain occurs when traversing disparate cultures, children from around the world are successfully and happily adopted into American homes on a regular basis. Yet, it has become accepted belief that children of tribal heritage are, as a rule, unable to thrive outside of Indian Country. The evidence is to the contrary. The vast majority of tribal members live outside of reservation boundaries, and many are living happy and successful lives.  Meanwhile, according to statistics provided by numerous tribal organizations, the BIA, FBI, and ACF, crime and physical, and sexual abuse have been steadily worsening on many reservations – even with reservation crime and child abuse frequently under-reported.

A concerned community does not wait for additional studies to act on an obvious and immediately known danger.  We do not wait for a study to rush a child out of a burning building. When a child is bleeding to death, we know to immediately put pressure on the wound and get the child to a hospital. Unwillingness to deal effectively with the immediate needs of children suffering extreme physical or sexual abuse from extended family or community – no matter where it is – casts doubt on tribal and federal government assertions that safety of the children is of paramount importance. These ten statements are not absolute to all reservations and individuals, but clarify the general reality witnessed:

  • Crime and child abuse are rampant on many reservations
  • Crime and child abuse are rampant because the U.S. Government has set up a system that allows for extensive abuse and crime to occur unchecked and without repercussion.
  • Because a certain amount of crime has been allowed to occur unchecked, many families who desire a safer community for their children (not all) have moved away from the reservation system.
  • At the same time, gang related tribal members remain or move to the reservation because it is protected from state police. With the increase in gang activity there is an increase in crime, drug abuse, alcoholism, child neglect, child abuse, and Fetal Alcohol Spectrum Disorder.
  • As a result of the migration off the reservation, tribal governments experience a drop in federal funds.
  • As an increasing percentage of healthier families leave the reservation system, an increasing percentage who remain willingly participate in the crime and abuse.
  • As a result of increasing crime and child abuse, more children are in need of care.
  • Some tribal governments are reticent to admit they no longer have enough safe homes to place children in, and not wanting to place the children off the reservation, have placed children in questionable and even dangerous homes.
  • It appears more important to some in federal government as well as some in tribal government to protect tribal sovereignty than it is to protect children.
  • In other words, there seems to be a protection of tribal sovereignty at all costs – even at the cost of children’s lives.

In contrast, the following five points clarify self-evident truths that policy makers need to know:

  • International law and treaties are valid and relevant
  • Life, liberty, and the ability to pursue happiness are rights endowed by the Creator to all men equally, no matter their heritage.
  • The vast majority of tribal members live outside of reservation boundaries, and many are living happy and successful lives.
  • A wide body of research confirms that foster care children of every heritage experience higher levels of emotional and psychological trauma.
  • A growing body of work by legal and historical researchers is finding current federal Indian policy unconstitutional

Although the ICWA has some statutory safeguards to prevent misuse, numerous families continue to be hurt by the law.  While the ICWA itself states it is not to be used in custody battles between birth parents, parents can refuse tribal court jurisdiction, non-tribal grandparents have the same rights as tribally enrolled grandparents, and courts can deviate from placement preferences with “good cause,” what has played out in various state and tribal courts has not always followed the wording and intent of the law. Further, wording in a law is of no help if one does not have the money to hire an attorney who knows Indian law. Many times, families fighting ICWA are low income.  Further, many non-tribal courts do not understand the law and defer to the tribal court. The ICWA has given some tribal leaders, social services, and tribal courts a sense of entitlement when it comes to children of heritage.

The era of the Indian Child Welfare Act will become one of the numerous shames in American history. While many have been led to believe the ICWA is a righteous law, the reality is that powerless citizens have again been placed under subjugation.

If the ICWA were to remain law, it would require several amendments:

  • Children of tribal heritage need protection equal to that of any other child in the United States. State health and welfare requirements for foster and adoptive children should apply equally to all. Importantly, those assigned to child protection, whether federal, state, county or tribal, need to be held accountable if a child is knowingly left in unsafe conditions. (Title 42 USC 1983).
  • Fit parents, no matter their heritage, should have the right to choose healthy guardians or adoptive parents for their children without concern for heritage or the overriding wishes of tribal or federal government. US Supreme Court decisions upholding family autonomy under 5th and 14th Amendment due process and equal protection include Meyer vs. Nebraska, Pierce v. Society of Sisters, and Brown v. Board of Education.
  • The ‘Existing Indian Family Doctrine’ should be available to families and children who choose not to live within the reservation system. Alexandria had held that “recognition of the existing Indian family doctrine [was] necessary to avoid serious constitutional flaws in the ICWA”. Thus, if the existing Indian family doctrine has already been ignored in current ICWA cases, then serious constitutional flaws may have already occurred.
  • United States citizens, no matter their heritage, are guaranteed civil rights which include fair hearings. When summoned to a tribal court, parents, and legal guardians, whether enrolled or not, should be fully informed of their rights, including 25 USC Chapter 21§1911(b), which states “Transfer of proceedings [to tribal jurisdiction]” will occur only “…in the absence of good cause to the contrary, [or] objection by either parent….” The rights of non-member parents must be upheld. According to 25 USC Chapter 21§1903(1)(iv), ICWA placement preferences “shall not include a placement based … upon an award, in a divorce proceeding, of custody to one of the parents.” ICWA placement preferences also include all grandparents – no matter the heritage. Finally, non-members must be able to serve county and state summons to tribal members within reservation boundaries and must have access to appeal.
  • A “qualified expert witness” must be someone who is able to advocate for the well-being of the child, first and foremost, not a tribe. An expert witness needs to be a professional person with substantial education and experience in the area of the professional person’s specialty and significant knowledge of and experience with the child, his family – and the culture, family structure, and child-rearing practices the child has been raised in. There is nothing a tribal social worker inherently knows about a child based on nothing more than the child’s ethnic heritage. This includes children of 100% heritage who have been raised apart from the tribal community. A qualified expert witness needs to be someone who has not only met the child, but has worked with the child, is familiar with and understands the environment the child has thus far been raised in and has professional experience with some aspect of the child’s emotional, physical, or academic health. This is far more important than understanding the customs of a particular tribe.
  • Finally, if tribal membership is truly a political rather than racial designation, than the definition of an “Indian” child is one who is “enrolled” in the tribe, not merely “eligible.”

Allowing tribal governments the right to determine their own membership at the expense of the rights of any other heritage or culture as well as at the expense of individual rights is indeed political. However, relatives being told these children are suddenly now members of an entity with which the family has had no political, social, or cultural relationship betrays the reality that at least in the case of their child, “race” is determining membership.

Keeping children, no matter their blood quantum, in what a State would normally determine to be an unfit home – solely on the basis of tribal government claims that European values do not apply to and are not needed by children of tribal heritage – is racist in nature and a denial of the child’s personal right to life, liberty and the pursuit of happiness.

Tribal members are not just U.S. citizens; they are human beings. They are not chattel owned by tribal governments or servants indentured to the success of tribal governments, nor are they lab rats for Congress, pawns to be used at the negotiating table, or zoo exhibits for patronizing tourists looking for entertainment.

Even if a child had significant relationship with tribal culture, forced application of ICWA conflicts with the Constitution. There is nothing within the U.S. Constitution nor any treaty that gives Congress the authority to mandate individuals stay connected to a tribe, support a particular political viewpoint, or raise their children in a prescribed culture or religion.

For this reason, the ICWA cannot remain law. Natelson has shown that the ICWA goes far beyond the limited scope of the Indian Commerce Clause.  While some tribal members appreciate that proper application of the Constitution means that Congress has no plenary power over tribal affairs, it also means that Congress has no power to enact laws such as the ICWA.

In light of constitutional issues inherent to the foundational enactment of the Indian Child Welfare Act, the ICWA must be repealed. The Commerce Clause does not give Congress plenary authority over tribes or children of heritage, and tribal governments do not have the authority to force membership onto individuals, no matter their age.

Allowing individuals to employ their full constitutional rights would preserve to citizens their God-given right to individuality, liberty, and property, which is what the United States government is tasked to do.  In the words of Dr. William Allen, Emeritus Professor, Political Science, MSU and former Chair of the U.S. Commission on Civil Rights:

 “… We are talking about our brothers and our sisters. We’re talking about what happens to people who share with us an extremely important identity. And that identity is the identity of free citizens in a Republic…” (2010)[10]

*BIO:

Elizabeth Morris is the administrator of the ‘Christian Alliance for Indian Child Welfare’ – a national non-profit she and her husband, a member of the Minnesota Chippewa tribe, founded in 2004.  She is also a Congressional Commissioner on the Alyce Spotted Bear and Walter Soboleff Commission on Native Children.  Ms. Morris has been writing, lobbying, and advocating on issues related to federal Indian policy since 1995 and is currently working on her PhD in Public Policy: Social Policy at Liberty University.

Ms. Morris graduated with a Bachelor of Science, Interdisciplinary Studies: Government and Policy, Communication, and Health Science magna cum laude in August 2016 and earned her Master of Arts in Public Policy with Distinction in July 2019, both at Liberty University.  Her Master Thesis is titled: “The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act.’

Ms. Morris also earned a Bachelor of Arts in Christian Ministries; Associate of Science (Registered Nurse), a Diploma of Bible & Missions, and is the author of the book, Dying in Indian Country.’

FOOTNOTES

[1] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)

[2] Kansas v. Colorado 206 U.S. 46 (1907)

[3] United States v. Kagama 118 U.S. 375, 378 (1886)

[4] See generally Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 ARK. L. REV. 847 (2003); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101 (2001); (R. Natelson, The Original Understanding of the Indian Commerce Clause 2007, Supra note 2, 214 )

[5] United States v. Lopez, 514 U.S. 549, 585, 586, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)

[6] (reprint 1978)

[7] 218 F.3d 458, 464–65 (5th Cir. 2000)

[8] 543 U.S. 371, 378 (2005)

[9] SEE The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act: ‘ICWA Case Studies’ and ‘Child Abuse.’

[10] Dr. William B. Allen’s keynote speech at the Christian Alliance for Indian Child Welfare’s  ICWA Teach-In, titled ‘Indian Children: Citizens, not Cultural Artifacts,’ on  October 28, 2011, in the chambers of the Senate Committee on Indian Affairs.

REFERENCES

Ablavsky, Gregory. “Beyond the Indian Commerce Clause.” Yale Law Journal 124 (2015): 1012, 1017.

Adoptive Couple v. Baby Girl. No. 12–399 (U.S. Supreme Court, June 25, 2013).

Allen, William B. “ICWA Teach-in, Keynote.” Washington DC: CAICW, 10 2010.

Brief of Amicus Curiae Christian Alliance for Indian Child Welfare in Support of Plaintiffs-Appellees and Affirmation (Brackeen v. Zinke, 2018). 4:17-CV-00868 (U.S. Court of Appeals for 5th Circuit, February 2019).

Cleaveland, Bonnie PhD ABPP. Split Feather: An Untested Construct. Scientific Analysis, Charleston: Icwa.co, 2015.

Cohen, Felix S. Handbook of Federal Indian Law. 1942. Albuquerque, NM: University of New Mexico Press, [1942] 1971.

DHS. ICWA from the Inside Out: ‘Split Feather Syndrome’. Article, Dept of Human Services, State of Minnesota, St. Paul: DHS, 2005.

Fiddler, Mark. “Adoptive Couple V. Baby Girl, State ICWA Laws, and Constitutional Avoidance.” Minnesota State Bar Association Family Law Forum (Minnesota State Bar) 22, no. 2 (Spring 2014): 10.

Fletcher, Matthew L.M. “The Iron Cold of the Marshall Trilogy.” N.D. Law Rev (Michigan State University College of Law) 82 (2006): 627.

LexisNexis. Cohen’s Handbook of Federal Indian Law. LexisNexis, 2005.

Locust, Carol. Split Feather Study. Pilot Study, Native American Research and Training Center, University of Arizona College of Medicine, Tucson: Pathways, 1998.

Morris, Elizabeth. “The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act.” Scholars Crossing, 8 2019: 337. https://digitalcommons.liberty.edu/masters/591/

Natelson, Rob. “Constitutional Law Professor.” Email Correspondence. 1 22, 2019.

Natelson, Robert G. “The Legal Meaning of “Commerce” in the Commerce Clause.” St. John’s Law Review 80 (2006): 789, 805–06.

Natelson, Robert. “The Original Understanding of the Indian Commerce Clause.” Denver University Law Review 85 (2007): 201.

Prygoski, Philip J. “From Marshall to Marshall: The Supreme Court’s changing stance on tribal sovereignty.” GP Solo Magazine, 7 2, 2015.

Rowley, Sean. 43rd Symposium on the American Indian at Northeastern State University . April 17, 2015. http://m.tahlequahdailypress.com/news/icwa-discussed-at-symposium-seminar/article_08846b3a-e543-11e4-8421-7744ec7971c6.html?mode=jqm (accessed April 20, 2015).

Speed, Nathan. “Examining the Interstate Commerce Clause Through the Lens of the Indian Commerce Clause.” Boston University Law Review, 2007, 87 ed.: 467, 470-71.

United States. “Constitution.” Cornell University Law School: Legal Information Institute. 1787. https://www.law.cornell.edu/constitution/.

United States v. Lopez. 93-1260 (U.S.S.C., 4 26, 1995).

Weingast, Barry R. “The Economic Role of Political Institutions: Market-Preserving Federalism and Economic Development.” The Journal of Law, Economics and Organization, 1995: 1-31.

 March 8, 2022  No Responses »
Oct 112021
 
children dying

October 11, 2021

Washington, DC – Wiley, a preeminent DC law firm, submitted an amicus brief to the U.S. Supreme Court on behalf of the Christian Alliance for Indian Child Welfare in Brackeen v. Haaland. The brief was filed in support of adoptive families and states in this high-profile case, which urges the Court to review a Fifth Circuit decision involving the rights of Native American children and their families under the Indian Child Welfare Act of 1978 (ICWA). The brief was joined by seven individual signatories who are former ICWA children or are parents to ICWA children, all of whom have been harmed by ICWA.

Wiley partner Stephen J. Obermeier and associate Krystal B. Swendsboe, who authored the amicus brief, are members of the firm’s Issues and Appeals Practice and are representing the nonprofit Alliance on a pro bono basis.

The case, which stems from a child-custody dispute, addresses the harm suffered by Indian children and their families as a result of ICWA – such as the denial of the full range of rights and protections of the federal and state constitutions to the petitioners when subjected to tribal jurisdiction under the ICWA.

“For nearly fifty years, ICWA has imposed race-based classifications on Indian children and their families – a clear violation of Equal Protection – and has caused horrendous individual suffering as a result,” Obermeier and Swendsboe explained in the Alliance’s brief.

As noted in the brief, this case raises particularly significant issues for Alliance because its members are birth parents, birth relatives, foster parents, and adoptive parents of children with varying amounts of Indian ancestry, as well as tribal members, individuals with tribal heritage, or former ICWA children – all of whom have seen or experienced the tragic consequences of applying ICWA’s race-based distinctions. The brief includes, as examples, stories from the individual amicus signatories who have been harmed by ICWA’s race-based distinctions and discriminatory placement preferences.

In addition to violating the U.S. Constitution’s Equal Protection Clause, the ICWA exceeds the authority granted to Congress under the Indian Commerce Clause, according to the amicus brief.

Congress “may not exercise power over family and custody matters under the guise of regulating commerce with Indian Tribes,” the brief argued. “ICWA, therefore, exceeds Congress’s power to regulate commerce, as it is entirely unrelated to commerce and intrudes on noncommercial subjects belonging entirely to the states.”

https://www.wiley.law/pressrelease-Wiley-Files-Amicus-Brief-in-High-Profile-Supreme-Court-Case-on-Behalf-of-Christian-Alliance-for-Indian-Child-Welfare-and-Former-ICWA-Children-and-Families

 October 11, 2021  No Responses »
Sep 222020
 

Submitted by US Attorney for the Eastern District of Oklahoma, Sep 21, 2020

United States Attorney Brian J. Kuester on Monday announced the results of the August and September 2020 Federal Grand Juries. The combined grand juries returned 32 unsealed and four sealed indictments on crimes ranging from kidnapping, federal firearms offenses, robbery, drug trafficking/distribution, child exploitation, aggravated sexual assaults in Indian country, and murder in Indian Country.

“The following named individuals have been charged with a federal crime or crimes by the return of an indictment by the Grand Jury. A grand jury Indictment does not constitute evidence of guilt. A grand jury Indictment is a method of bringing formal charges against the defendant. A defendant is presumed innocent of the charges and may not be found guilty unless evidence establishes guilt beyond a reasonable doubt. United States Sentencing Guidelines may be considered, upon conviction, by the sentencing court. Federal prison sentences are non-parolable.”

JIMCY McGIRT. Aggravated sexual abuse in Indian Country (Three counts). McGirt, 71, of Wagoner County, is charged with three counts of sexual abuse of a minor. Allegations are, in 1996, McGirt knowingly engaged in sexual acts with a child under the age of 12. The Federal Bureau of Investigation is the primary investigative agency.

MICHAEL WAYNE MILLER. Felony child abuse in Indian Country (Two counts). Miller, 41, of Muskogee, is charged with willfully striking and injuring a child under the age of 18 in January 2019. The Federal Bureau of Investigation is the primary investigative agency.

BRANDON EDWARD BRIDGES. Child neglect in Indian Country. Bridges, 24, of Muskogee, is charged with neglecting the health, safety and welfare of children under his supervision and exposing them to the use and possession of illegal drugs and illegal activities. The Federal Bureau of Investigation is the primary investigative agency.

KYLE JOSEPH VANNORTWICK. Murder in Indian Country. Vannortwick, 35, of Muskogee, is charged with the premeditated murder of his identical twin brother, Adam Vannortwick, with a knife. The Federal Bureau of Investigation is the primary investigative agency.

JEREMY SANUEL HOOTEN. Assault with a dangerous weapon in Indian Country; assault resulting in serious bodily injury in Indian Country; robbery in Indian Country; use, carry, and brandishing a firearm during and in relation to a crime of violence; first-degree burglary in Indian Country. Hooten, 19, of Eufaula, is charged with breaking and entering into a home and, restraining, violently assaulting, and robbing an elderly victim at gun point. In the commission of the robbery, the victim sustained lacerations to the head. The Federal Bureau of Investigation is the primary investigative agency.

GAGE HAYDEN ROSS. Assault with intent to commit Murder in Indian Country; assault with a dangerous weapon with intent to do bodily harm in Indian Country; assault resulting in serious bodily injury in Indian Country; use, carry and discharge of a firearm during and in relation to a crime of violence. Ross, 22, of Oktaha, is charged with shooting a victim in the back with a firearm with intent to kill. The Federal Bureau of Investigation is the primary investigative agency.

PATRICK DWAYNE MURPHY. Murder in Indian Country; Murder in Indian Country in perpetration of kidnapping; kidnapping resulting in death. Murphy, 51, of Vernon, is charged with the kidnapping and premeditated murder of George Jacobs, on Aug. 28, 1999, with a knife. The Federal Bureau of Investigation is the primary investigative agency.

SOLOMON LAMONT HORSECHIEF. Aggravated sexual abuse in Indian Country (Four counts). Horsechief, 35, of Muskogee, is charged with four counts of sexual abuse of a person under the age of 16 years old and administering intoxicants to said minor. The Federal Bureau of Investigation is the primary investigative agency.

COLTON DELAIN EDWARDS; JOBE ANTHONY TERRONEZ; PHILLIP LEMONT JONES, JR.; JAKEYVIOUS DUNE LEE KEY; JAYSEA MARKARA WILLIAMS. Assault with intent to commit murder in Indian Country (2 counts); attempted robbery in Indian Country (2 counts); first-degree burglary in Indian Country (2 counts); assault with a dangerous weapon, with intent to do bodily harm in Indian Country (2 counts); use, carry, and discharge of a firearm during and in relation to a crime of violence; firearms conspiracy. Edwards, 19, Terronez, 19, Jones Jr., 19, Key, 19, and Williams, 19, all of Haskell, allegedly used firearms to attempt to shoot, assault, and ultimately murder victims during the commission of a burglary and attempted robbery. The Federal Bureau of Investigation is the primary investigative agency.

JOHNATHAN ZAMUDIO. Murder in Indian Country. Zamudio, 33, of Muskogee, is charged with the premeditated stabbing murder of Keith Dean Boswell, while in a physical altercation with the victim outside of a Family Dollar store in the city of Muskogee. The Federal Bureau of Investigation is the primary investigative agency.

DORION LAROY MARTIN. Assault with intent to commit murder in Indian Country; assault with a dangerous weapon with intent to commit bodily harm in Indian Country (2 counts); assault resulting in serious bodily injury in Indian Country; use, carry and discharge of a firearm during and in relation to a crime of violence; felon in possession of firearm. Martin, 28, of Muskogee, allegedly used a firearm to attempt to shoot, assault, and ultimately murder victims by causing serious bodily injury during an altercation. Martin is further charged as a felon in possession of a firearm in relation to a crime of violence. The Federal Bureau of Investigation is the primary investigative agency.

DAVID NEIL DUNN. Assault resulting in serious bodily injury in Indian Country; use, carry, and discharge of a firearm during and in relation to a crime of violence. Dunn, 20, of Muskogee, is charged with brandishing and discharging a shortened .22 caliber rifle that resulted in a female victim sustaining gunshot wounds on October 9, 2019. The Federal Bureau of Investigation is the primary investigative agency.

JAYCE MICHAEL MOSQUITO. Aggravated sexual abuse in Indian Country. Mosquito, 33, of Okmulgee, is charged with sexual abuse of a minor in Indian Country, alleging in June 2018, Mosquito knowingly engaged in sexual activity with a child under the age of 12. The Federal Bureau of Investigation is the primary investigative agency.

CALEB TRENT HODGINS; TYLER SHANE GRANDSTAFF; TYLER ROSS DEERINWATER. Murder in Indian Country; use, brandish, discharge, and carry a firearm during and in relation to a crime of violence; assault with intent to commit murder in Indian Country (3 counts). Hodgins, 25, of Holdenville; Grandstaff, 29, of Seminole, and Deerinwater, 29, of Holdenville, are charged with brandishing and using a Smith & Wesson .40 caliber pistol to kill Jonathon Merriman on or about June 24, 2018. The Federal Bureau of Investigation is the primary investigative agency.

NATHAN JOE CHECOTAH. Assault of an intimate partner and dating partner in Indian Country; assault with a dangerous weapon with intent to commit bodily harm in Indian Country. Checotah, 26, of Okmulgee, is alleged to have assaulted his dating partner by suffocating and strangling her. The FBI and Sapulpa Police Department are the investigative agencies.

JOSHUA RYAN GANN. Murder in Indian Country. Gann, 29, of Wetumka, is charged with the premeditated murder of his grandfather, Gregory Lee Fish, with a sword. The Federal Bureau of Investigation is the primary investigative agency.

KYLE ELLIOTT LEITKA. Abusive sexual contact in Indian Country. Leitka, 31, of Weleetka, is charged with having sexual contact with the victim without permission. The Federal Bureau of Investigation is the primary investigative agency.

MARK KEVIN DODSON; SETH HENRY THOMAS. Arson in Indian Country. Dodson, 51, of Okemah and Thomas, 22, of Okemah, are charged with conspiring and maliciously setting fire to a dwelling in Indian country, on or about Sept. 15, 2019. The Federal Bureau of Investigation is the primary investigative agency.

TOMMY RYAN GOUGE. Murder in Indian Country. Gouge, 41, of Clearview, is charged with the premeditated murder of his wife, Stephanie Michelle Gouge, on Feb. 14, 2020, with an edged weapon. The Federal Bureau of Investigation is the primary investigative agency.

AUSTIN DEAN McMAHAN. Murder in Indian Country (Two counts). McMahan, 21, of Okmulgee, is charged with the premeditated murder of Mandy Hart (his girlfriend) and Ronald Chandler by shooting them both with a firearm. The Federal Bureau of Investigation is the primary investigative agency.

MATTHEW ROY LAWSON. Sexual exploitation of a child / use of a child to produce a visual depiction; possession of certain material involving the sexual exploitation of a minor. Lawson, 33, of Springdale, Arkansas, is charged with willfully trying to persuade a person under the age of 12 years old to engage in sexually explicit conduct and using a child to produce visual depictions of a sexual nature. The Federal Bureau of Investigation is the primary investigative agency.

DIAMOND LEVI BRITT. Murder in Indian Country. Britt, 25, of Henryetta, is charged with the premeditated murder of his father, Gary Britt, on or about Sept. 16, 2019, with a sword. The Federal Bureau of Investigation is the primary investigative agency.

MARTHA CHRISTINE SIMPSON; JABAICA LEE TECUMSEH; TOMMY GLEN TECUMSEH. Murder in Indian Country. Simpson, 44, of Broken Arrow; J. Tecumseh, 40, of Okmulgee, and T. Tecumseh, 33, of Okmulgee, are all charged with the premeditated stabbing murder Robert Trevor Richardson. The Federal Bureau of Investigation is the primary investigative agency.

CAMERON AUSTIN BURGESS. Assault resulting in substantial bodily injury to a spouse, intimate partner, or dating partner in Indian Country; assault resulting in serious bodily injury in Indian Country; use, carry, and discharge of a firearm during and in relation to a crime of violence. Burgess, 22, of Morris, is charged with assaulting his partner with a firearm, causing substantial bodily injury by gunshot wound. The Federal Bureau of Investigation is the primary investigative agency.

DENNIS DEWAYNE CANTRELL. Possession with intent to distribute heroin; possession with intent to distribute methamphetamine; possession of firearm in furtherance of a drug trafficking crime; felon in possession of a firearm. Cantrell, 29, of McAlester, is charged with possession of heroin and methamphetamine with intent to distribute. Cantrell is further charged as a felon in possession of a firearm in furtherance of drug trafficking crime. The Drug Enforcement Administration is the primary investigative agency.

MIKE AVERY THOMPSON, JR. Assault with a dangerous weapon with intent to commit bodily harm in Indian Country; assault resulting in serious bodily Injury in Indian Country. Thompson, 30, of Okemah, is charged with the stabbing, resulting in serious bodily harm, of a male in Indian Country. The Federal Bureau of Investigation is the primary investigative agency.

NELSON ONARO, D.O. Unlawful Distribution and Dispensing of Controlled Substances (24 counts). Onaro, a 67 year-old Doctor of Osteopathic Medicine out of McAlester, is charged with illegally dispensing and distributing controlled substances from approximately May 23, 2019, to on or about Nov. 26, 2019. The Drug Enforcement Administration is the primary investigative agency.

JOSHUA RYAN GREEN. Murder in Indian Country (2 counts); arson in Indian Country. Green, 30, of Okemah, is charged with the premeditated murder of his former girlfriend’s mother and brother with a firearm. Green is also charged with maliciously setting a fire to the incident residence. The Federal Bureau of Investigation is the primary investigative agency.

KYLE JOE MAXWELL. Robbery in Indian Country. Maxwell, 26, of Weleetka, allegedly robbed a convenience store at gunpoint in Okfuskee County on November 8, 2017. The Federal Bureau of Investigation is the primary investigative agency.

MATTHEW WEST NIX. Involuntary manslaughter in Indian Country. Nix, 33, of Morris, is charged with involuntary manslaughter after causing a car accident, resulting in the death of a woman, while driving impaired. The Federal Bureau of Investigation is the primary investigative agency.

STEPHEN JACK NELSON. Assault with a dangerous weapon with intent to commit bodily harm in Indian Country. Nix, 32, of McAlester, is charged with discharging a firearm with intent to cause bodily harm during a verbal altercation. The Federal Bureau of Investigation is the primary investigative agency.

RAITHIELE ROBINSON; SKY ANGEL WRIGHT. Murder in Indian Country in perpetration of robbery; attempted robbery; conspiracy. Robinson, 46, of Broken Arrow and Wright, 25, of Broken Arrow, allegedly caused the unlawful killing of the victim, Mikael Parker, during the commission of the robbery. The Federal Bureau of Investigation is the primary investigative agency.

 September 22, 2020  No Responses »
Oct 212019
 
The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act - https://digitalcommons.liberty.edu/masters/591/

By Elizabeth S. Morris

A Thesis Submitted to the Faculty of the Helms School of Government in Candidacy for the Degree of Master of Arts in Public Policy

https://digitalcommons.liberty.edu/masters/591

‘Although the ICWA has some statutory safeguards to prevent misuse, numerous families continue to be hurt by the law.’

Preface

My husband and I began our lives together in a symbiotic alcoholic-enabler relationship in the late 70’s. With our family on the edge of self-destruction in 1987, my husband, an enrolled member of the Minnesota Chippewa Tribe, born and raised on the Leech Lake reservation, had a transformational experience which changed his worldview and led him to take our family in a new direction. 

Having watched many of his relatives suffer within the reservation system, he began to see reservation violence and crime as an outcome of current federal Indian policy more than it was about past policy. This led us to forming an advocacy in the late 90’s for families hurt by federal Indian policy.  We did our best to share hope and life, as inadequate as we were, by assisting extended family in our home, neighbors in our community, and strangers across the nation. We never did it for money; there was never any money. Everything we did came from passion for the lives of our children, nieces and nephews, and extended communities.

Unfortunately, reservation crime, corruption, drug abuse and violence have continued to increase over the years. My husband has since passed away and I am a widow, continuing the work we had begun in 1996.

This thesis compiles some of the documented history, philosophy, and consequences of federal Indian policy. It also includes a preliminary quantitative causal comparative survey with 1351 participants – 551 of whom identify tribal heritage – and explores the relationship between differences.

We serve a powerful God with whom all things are possible.  Our job is to serve in the capacity He has given us, even if we do not understand why, and then enjoy watching what He does next. 

Abstract

This paper will examine the philosophical underpinnings of current federal Indian policy and its physical, emotional, and economic consequences on individuals and communities.

The U.S. Civil Rights Commission found in 1990 that “[T]he Government of the United States has failed to provide civil rights protection for Native Americans living on reservations” (W. B. Allen 1990, 2). As Regan (2014) observes, individuals have been denied full title to their property – and thus use of the property as leverage to improve their economic condition (Regan 2014). Tribal executive and judicial branches have been accused of illegal search and seizures, denial of right to counsel or jury, ex parte hearings and violations of due process and equal protection (W. B. Allen 1990, 3). Violence, criminal activity, child abuse and trafficking are rampant on many reservations (DOJ 2018). Largely because of crime and corruption, many have left the reservation system. The last two U.S. censuses’ report 75% of tribal members do not live in Indian Country (US Census Bureau 2010).

Research suggests current federal Indian policy and the reservation system are built on philosophies destructive to the physical, emotional and economic health of individual tribal members. This paper contends that allowing property rights for individual tribal members, enforcing rule of law within reservation systems, supporting law enforcement, and upholding full constitutional rights and protections of all citizens would secure the lives, liberties and properties of affected individuals and families.

Introduction

For almost 200 years the U.S. federal government has claimed wardship over members of federally recognized Indian tribes.  Yet, despite the nineteenth century U.S. federal court rulings that propagated this view, disagreement continues as to whether tribes located within the United States are sovereign, whether Congress has plenary power over them, and whether individual tribal members have U.S. Constitutional rights: 

  • Some say the nineteenth century U.S. Supreme Court cases known as the ‘Marshall Trilogy’ contradict tribal sovereignty.  Others say they uphold it.
  • Some say treaties promise a permanent trust relationship. Others point out that most treaties have clearly specified final payments of federal funds and benefits and were written and signed with clear intent for gradual assimilation.
  • Some say the Constitution never gave Congress anything more than the power to regulate trade with tribes. Others claim the Constitution not only gave Congress total and exclusive plenary power to decide every aspect of life in Indian Country – but by unstated extension, gave the executive branch this power as well.
  • Some argue that the Constitution never had authority over tribes or tribal members. Others cite the Constitution when seeking judicial redress. 
  • Some tribal officials argue that international law should not have been forced upon non-European cultures that had no say in it. Others point to natural law and international law – the grounds for treaties between nations – as basis for uninterrupted tribal sovereignty.

Inherent, retained tribal sovereignty was reality for tribal governments prior to the formation of the United States and in the immediate years following its birth, but is not reflected in case law from the 1800s and much of the 1900s. By the time of Andrew Jackson, the United States had taken a position of control. Further, over the last two centuries, the vast majority of tribal leaders accepted large payments for land, accepted federal trust benefits, and submitted to federal government’s de facto power over them.   

Throughout history and every heritage, various men have coveted power over others.  Today, tribal governments, while accepting and playing into Congress’ claim of plenary power, have themselves, also, claimed exclusive jurisdiction and authority over unwilling citizens. Tribal governments regularly lobby and petition both Congress and the White House to codify tribal jurisdiction over the lives, liberty and property of everyone within reservation boundaries as well as some outside reservation boundaries.  While claiming exclusive jurisdiction, tribal governments have requested and given blessing for the federal government to manage children of tribal heritage – asking Congress to write the Indian Child Welfare Act and the executive branch to write federal rules governing the placement of every enrollable child in need of care. Some tribal governments and supportive entities have gone further – asking even governors and state legislators to expand on and strengthen control over children with heritage.

Often cited as justification for the ICWA is a 1998 pilot study by Carol Locust, a training director at the Native American Research and Training Center at the University of Arizona College of Medicine.  Locust’s study is said to have shown that “every Indian child placed in a non-Indian home for either foster care or adoption is placed at great risk of long-term psychological damage as an adult” (Locust, Split Feather Study 1998).  Referring to the condition as the “Split-feather Syndrome,” Locust claims to have identified “unique factors of Indian children placed in non-Indian homes that created damaging effects” (Locust, Split Feather Study 1998).  The Minnesota Department of Human Services noted “an astonishing 19 out of 20 Native adult adoptees showed signs of “Split-feather syndrome” during Locust’s limited study (DHS 2005).

“Unfortunately,” according to Bonnie Cleaveland, PhD ABPP, “the study was implemented so poorly that we cannot draw conclusions from it.” Only twenty adoptees with tribal heritage – total – were interviewed. All were removed from their biological families and placed with non-native families. There were no control groups to address other variables. According to Cleaveland:

Locust asserts that out-of-culture removal causes substance abuse and psychiatric problems. However, she uses no control group. She doesn’t acknowledge the high rates of trauma, psychiatric and substance abuse among AI/AN people who remain in their culture and among the population of foster children. These high rates of psychosocial problems could easily account for all of the symptoms Locust found in her subjects 

(Cleaveland 2015).

Cleaveland concluded, “Sadly, because many judges and attorneys, and even some caseworkers and other professionals, are not familiar with the research, results that may be very wrong are leading to the wrong outcomes for children” (Cleaveland 2015).  While supporters of ICWA cite “Split-feather Syndrome” as proof the ICWA is in the best interest of children, many children have been hurt by application of the law. 

Questions that need more extensive study include whether children who were adopted into non-Indian families as children show greater problems with self-identity, self-esteem, and inter-personal relationships than do their peers.  Are the ties between children who have tribal heritage and their birth families and culture stronger than that of their peers, no matter the age at adoption?  Other considerations include whether all tribal members support federal policies that mandate their cases be heard only in tribal courts and whether a percentage of persons of tribal heritage believe federal Indian policy infringes on their life, liberty and property.

 The central concern of this paper is how current federal Indian policy has affected the lives, liberty and property of those who have tribal heritage – most specifically the Indian Child Welfare Act.  Through research of the historical foundations of federal Indian policy and a nation-wide comparative survey of family dynamics, this paper will attempt to answer these and other questions.

READ FULL TEXT – https://digitalcommons.liberty.edu/masters/591

Citation

Morris, Elizabeth S. The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act. Master Thesis, Helms School of Government, Liberty University, Lynchburg: Digital Commons, 2019, 337.  

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 October 21, 2019  No Responses »
Jun 082017
 
Gang Jumped Savannah

by Thomas F. Sullivan

For generations, the residents of the Pine Ridge Reservation have lived with unemployment and poverty rates that have never been seen in the majority community even during the Great Depression.

According to an MSNBC Report on Pine Ridge on May 29, 2014, “Roughly four out of five residents are unemployed and well over half live in deep poverty…… Life expectancy is just 48 years old for men and 52 for women….. About 70 percent of the students will drop out of school before they graduate.”

That last statistic is especially troubling and is inconsistent with the claim frequently stated by tribal leaders that “Our children are sacred”.

According to that same MSNBC Report, “In a startling new draft report, issued in April 2014 by the Bureau of Indian Education which oversees 183 schools on 64 reservations in 23 states, focuses attention on BIE’s inability to deliver a quality education to its students. BIE schools are chronically failing. BIE operates ‘one of the lowest-performing set of schools in the country.’ During the 2012 – 2013 school year, only one out of four BIE-funded schools met state-defined proficiency standards and one out of three were under restructuring due to chronic academic failure…. BIE students performed lower on national assessment tests than students in all but one other major urban school district.”

Given these conditions which have persisted for generations as well as the Pine Ridge in SDalmost total absence of any economic activity on the reservation, it is not surprising that there is a high level of dysfunction as well. This dysfunction is exemplified by the following health and social welfare measures:

* The infant mortality rate at Pine Ridge is one of the highest in the nation at 3 times the national average;
* The incidence of diabetes is 8 times the national average;
* Eight out of every ten people at Pine Ridge are alcoholics. Given this fact it is highly likely that most newborns on this reservation are born with Fetal Alcohol Spectrum Disorder (FASD), a severe developmental delay. Care of children with FASD requires an extended time commitment, great patience, and resilience, none of which is in abundant supply in most reservation homes:
* Drug use and abuse, both prescription and illegal, is rampant;
* The teenage suicide rate is 150 percent of the national average. In the first 8 months of 2015. There were 19 completions by youth between the ages of 9 and 24 and more than 100 attempts by children from the same age group. Within the last week, a 12-year-old girl hanged herself on a tree behind the Sue Anne Big Crow Youth Center. Shortly before a 14-year-old boy recently completed, he was being counseled by one of his teachers. She told him that Lakota tradition teaches that a spirit set free by suicide is doomed to wander the earth in lonely darkness. “You don’t want that, do you?” His response was chilling, “Anything is better than here”.
* The level of domestic violence is at epidemic levels. In CY 2014 the Tribal Department of Public Safety prosecuted 470 cases of domestic violence. During the same period one of the Tribe’s domestic shelters reported they had responded to more than 1,300 cases of domestic violence:
* In CY 2016 there were 17 homicides on Pine Ridge, a rate 4 times the current homicide rate in the city of Chicago:
* For the last several years, the Pine Ridge reservation child protection staff has been investigating, relying on rigorous standards, every case of reported child sexual abuse and confirming, on average, 2 ½ cases per week for every week during each of those years. Considering that most estimates are that 10 percent or less of such abuse is ever reported, the seriousness of this level of child sexual abuse cannot be overstated.
* Research data are clear, children who are sexually abused are 2½ times more likely to attempt and/or complete suicide than children who have not been sexually abused.

On May 1, 2015, in the New York Times Ron Cornelius, the Great Plains Director of the Indian Health Service is quoted as saying, that “the recent suicides were an incredibly sad situation that IHS was committed to working with the tribe to address this heartbreaking problem.” It is not clear to me from the public record available to me just what the IHS has done to fulfill this commitment. At that time I was the ACF Regional Administrator in Denver and heard from friends on and around Pine Ridge, “There are a lot of ‘suits’ traveling to Pine Ridge. They are not meeting with anyone from the Reservation. They spend all of their time in a conference room talking with each other. They seem to make it a point to avoid any tribal members.”

However, former Pine Ridge Tribal Judge Saunie Wilson, in a power point presentation to a west coast conference on youth suicides in early 2017, described the 20 professionals sent to Pine Ridge by IHS to “solve” the reservation suicide epidemic in the following terms, “They had, No background checks, No licenses to work in South Dakota and No knowledge of reservation culture, mores or society.” Unfortunately, this is the same inept approach IHS used when there was a comparable burst of youth suicides on Montana’s Fort Peck Reservation several years earlier. I was invited by the Tribal Chair to sit in on the IHS meetings with Tribal staff as an impartial observer for the Tribe. As a result, I could observe what IHS was doing in response to the youth suicide burst on that Reservation. They were clearly not effective then. How could they believe they would be effective several years later?

On April 5, 2017, at a meeting of the Pine Ridge Tribal Law and Order Committee, the following statement was made by Richard Little Whiteman, a Council member and Chair of this Committee, “I haven’t seen this level of violence since the 1970s”. The Committee also heard reports that the number of law enforcement officers, once numbering more than 100 sworn officers, now was little more than 20, had the impossible task of policing a geographic area comparable in size to the states of Delaware and Rhode Island combined 7 days a week, 24 hours every day.

What is especially puzzling is the deafening silence from both the media, those who by their titles and their government positions have direct responsibility to correct such problems and those who claim they are advocates working on behalf of the welfare of women and children.

For example, if either the city of Cambridge, MA or Berkeley, CA, each with a total population of approximately 100,000, had the same level of youth suicide completions as Pine Ridge, the following would be occurring:

1. There would be youth suicide completions just about daily in each of these communities.
2. There would not be enough curb space to park all of the media trucks providing a direct link to the community for their viewers. After all the media had ignored multiple detailed, factual reports about the dysfunction in these communities and predictions about what would follow from that dysfunction. Recognizing their prior error in not covering all of the dysfunction, media outlets were competing to provide the most offensive coverage. They characterized their coverage as “presenting the facts.”
3. Members of Congress would be convening hearings in these communities in an attempt to elicit some hints as to the cause of such dysfunction even though they had never mentioned these communities until the funerals began to be held when the dysfunction in these communities could no longer be ignored. Based on past experience the best that the local congressional delegation will be able to do is to appoint a study committee charged with reporting back on the cause of all the suicides within three years. No action would have to be taken to assist these communities until the study report was produced.
4. Advocates would be elbowing their way to get in front of any operating TV camera to push their unique solutions to such dysfunction even though they had not only known about the extreme dysfunction in these communities but they had also been silent about it until the funerals began.
5. State, county, and local officials would point at each other, claiming they had little or no responsibility to correct these problems. It was the responsibility of that “other guy” (whoever that unidentified person was) until federal funds were made available. Then the competition would be cut-throat. Each would cite their “expertise” on matters of this kind even though each had just established an extensive written record claiming they knew nothing about such matters in their efforts to avoid any responsibility (political punishment for refusing to deal with the dysfunction in their communities until the funerals began) for what was happening in these communities.
6. Federal officials whose organizations had been widely praised for formally adopting mission statements claiming they were responsible for the well-being of every citizen in their service area would initially deny any responsibility for such dysfunction, pointing at state, county or local officials as the parties responsible for addressing and correcting such behavior. When and if Congress appropriates funds to address and correct these problems, these same federal officials will distribute those funds without first establishing performance measures to determine the effectiveness of how these funds are spent. If the past is any guide, it will be several years before performance measures will be put in place.

If this is the response to the massive dysfunction and resulting epidemic of youthful suicides in communities like Cambridge or Berkeley, can anything better be expected at Pine Ridge?

Pine Ridge is a small, Isolated, rural community with little political power. They have been ignored and will continue to be ignored.

The sexual abuse of American Indian children should have resulted in a high-level commitment to stop the abuse once it had been uncovered years ago.

During the last two Administrations, I brought the twin epidemics of child sexual abuse and child/youthful suicides in Indian Country to the attention of the political leadership of the Administration for Children and Families and the Department of Health and Human Services with multiple, detailed, factual, written presentations. These presentations detailed the pervasive extent of the abuse, the long-term impact on the abused individuals, their families and the community at large and the substantial public cost of such abuse. They had no effect. It was as if they had never been read.

Until one is prepared to focus on and widely and continuously publicize the hypocrisy of those who know the facts and who deny or ignore them, thereby allying themselves with those who abuse children, nothing will be done to correct this barbaric situation. Until those who have chosen silence in the face of widespread child sexual abuse are publicly identified and shamed in all major media outlets for their alliance with sexual predators, attempting to stop the barbarism is a fool’s errand.

Thomas F. Sullivan is a former Regional Administrator for the Administration of Children and Families under the federal HHS.  He was forced out of his job in May, 2016, after defying his DC superiors by repeatedly reporting on child abuse on several reservations. 

~~~~~~~~~~~~~~

From Elizabeth Morris, Chair of CAICW:

For more information concerning our federal government’s apathy toward the well-being of tribal members, watch this 20-minute video:

 

 

 June 8, 2017  No Responses »
Apr 202017
 
children dying

Lenore Banning owned over a million feet of timber on her trust land in Washington State, but lived in poverty all her life. She was not allowed to sell any of her timber.

Toddler Lauryn Whiteshield was murdered a little over a month after her arrival to her grandfather’s home on the Spirit Lake Reservation in the spring of 2013. She and her three-year-old twin sister were taken from a safe, loving home in Bismarck and placed with their grandfather and his girlfriend, a woman known by Spirit Lake to have been abusive to children in the past. The woman beat the girls several times. On June 12, 2013, they were thrown down an embankment. Sometime later that night, Laurynn died next to her sleeping sister.

Factually, current federal Indian policy infringes on the lives, freedom, and property of many persons of Native American heritage.
– – Federal policies mandate tribal government jurisdiction over individuals of lineage in several situations, including
#1) Children across America who have never been near a reservation nor involved in tribal customs
#2) Families who have at one time lived on the reservation, but for their own reasons, have purposefully moved elsewhere and do not want tribal government jurisdiction
#3) Women of any heritage, victimized by reservation related violence, who are only allowed to seek justice in tribal court (even if the perp is a nephew to the judge) and are denied the option of county court
#4) And as the Department of Interior holds title to the property of millions of individual tribal members – Adult U.S. citizens who are not allowed to sell or use their property as collateral without permission.

Please share this video* with your friends.

PLEASE also share this video* with YOUR Congressmen. MANY of them take a stand on all kinds of things, demanding justice and civil rights. DEMAND that they take a strong stand for the rights of persons of heritage…CITIZENS subject to abuse by laws that Congress itself has created and MUST remove.

Most especially – share your thoughts on this video* with the Chairman of the Senate Committee on Indian Affairs – Senator John Hoeven. (701) 250-4618, or (202) 224-2551
or through his contact form at: https://www.hoeven.senate.gov/contact/email-the-senator

Find your State’s U.S. Senator and Congressmen here:
https://www.senate.gov/
https://www.house.gov/
– *This video was adapted from “The Implications of Native American Heritage on U.S. Constitutional Protections”, A Presentation Prepared for Liberty University, Research Week, Center for Research and Scholarship April 10-13, 2017

Thank you – and PLEASE Share….

Learn More:

https://DyingInIndianCountry.com

https://www.facebook.com/CAICW.org/

This video was adapted from “The Implications of Native American Heritage on U.S. Constitutional Protections,” A Presentation Prepared for Liberty University, Research Week, Center for Research and Scholarship, April 10-13, 2017

 April 20, 2017  No Responses »
Oct 122014
 

October 12, 2014

Introduction:

The American Indian Movement (AIM) and its federal supporters used deceptive, unethical and at times violent methods to achieve their end goal. While purporting to be a non-violent entity focused on the well-being and betterment of the people they said to represent, ‘tribal sovereignty’ was the primary and prized goal – at the expense of individuals, children and families

The federal government acquiesced following Wounded Knee in attempt to placate and stem violence from this very small percentage of tribal members. ICWA was proposed soon after Wounded Knee and signed into law within five years.

Former Senator Abourezk with AIM leaders – Russel Means, Dennis Banks, and Clyde Bellecourt

AIM, purported to have been established to help poverty-stricken Native American families, has had a deep and unrecognized destructive and oppressive impact on families of all heritages across America.

In July of 1968, Native Americans from Minneapolis, Minnesota gathered to organize and form AIM as a way to “fight mistreatment by police and to improve prospects for jobs, education, and housing. (Durham, 1974)”

 Initially, they did this. For the first few months, they were successful in cutting down on police harassment by monitoring police radio and arriving to an event before the police did. This resulted in a dramatic decrease in incarcerations for tribal members, and AIM members were widely accepted by the grateful community.

Honorable intentions to begin with – the leadership quickly decided this wasn’t enough. While they continued to maintain the initial stated objectives in public, behind closed doors, the motivation and goals had changed. Presenting the original stated goals made the best sound bite and comforted the ‘white’ public, anxious to alleviate societal guilt. However, AIM’s actions in the next few years went far beyond a legitimate push for justice, jobs and housing.

In the fall of 1972, AIM sponsored the “Trail of Broken Treaties.” About 900 people traveled from the west coast to Washington, DC, stopping at reservations along the way. After arriving in DC, they took over the BIA building and presented federal government with a 20-point proposal for sovereignty (Abourezk, 1972). Publicity from the “Trail of Broken Treaties” event rewarded the group with public sympathy and financing from the far left. Questions remain as to how they were so easily able to take over a federal building with little or no repercussion.

In 1973, AIM members violently took over the small town of Wounded Knee, South Dakota and conducted a siege that lasted from February 27 to May 8, 1973. While media played down criminal actions perpetrated on the very citizens AIM claimed to represent, people of Wounded Knee were intentionally robbed, beaten, and sometimes killed during the 71-day ordeal.

An amenable media smoothed things over for the “victimized” Native American organization. In one example, the media trumpeted that AIM had saved the town from an unscrupulous, predatory white grocer. In Robin Hood fashion, they relieved said grocer from his home and ill-gotten possessions and spread the plunder – including the store inventory – amongst themselves. The truth was this grocer had been known in the community for being extremely generous and AIM leaders imprisoned him and his wife – who was a tribal member – in their own basement. (Trimbach, 2007)

The stated goals of housing and jobs, while possibly initial goals of some members and branches of AIM, were not the end goals of its leadership. The stated goals of job and home were never reached and the leadership never seemed to give genuine effort to obtain them.

Instead, their factual push was for “tribal sovereignty” – the ability for certain tribal leaders to control other persons of Native American heritage as well as tribal-owned resources and assets. In a memorandum written to a colleague, AIM Executive Director Dennis Banks stated the ultimate AIM goal was to “free Indian people throughout the Americas from white man’s oppression and racism so as to create free Indian states that reflect self-determination of free peoples” (AIM, 1968).

AIM member Jimmie Durham went further, stating in a 1974 memorandum to AIM leaders,

“The Founding Fathers of the United States equated capitalism with civilization. They had to, given their mentality; to them civilization meant their society, which was a capitalist society. Therefore, from the earliest times the wars against Indians were not only to take over land but also to squash the threatening example of Indian communism. (Durham, 1974)”

Unfortunately, by the very nature of the group there was a power struggle from the start. Wide disagreement existed in the native community concerning AIM and its agenda. AIM’s young radicals from the cities, who had no power but wanted it (called “progressives” by the media), had to fight what the media called “traditionals” (leaders who already had power on the reservations and didn’t want to lose it). Further, while most of the nation was oblivious to the crime and murder committed by AIM at Wounded Knee, the people who lived through it were not.

Federal government leaders had begun to treat AIM leaders as legitimate authorities speaking for community members, but many Native American families saw AIM as thugs. By 1980, AIM declined as a leading organization. Many people saw no change in their day-to-day struggles and never benefited from AIM’s militant efforts. AIM leaders, much like the Jesse Jacksons and Al Sharptons of the world, had gotten their gold and were not showing much interest in the ongoing problems of their communities.

Tribal sovereignty, which was not on the radar of most people in the 1970’s, was now widely assumed reality – despite the legal term for Indian Reservations factually being “Domestic Dependents.” Today, AIM leaders, while still honored by federal government and international organizations, are never heard to speak up for better jobs, education, and housing, let alone speak up when a child is raped or murdered on the reservation.

What AIM pushed for all along was power and control. A draft memo written by a Nixon White House aide in 1974, following the Wounded Knee occupation, points this out, stating,

“…some individuals propose ‘the ultimate sovereignty: i.e., the external sovereignty of an independent nation, outside the jurisdiction of the United States, entirely. This option, while probably being ruled out as somewhat extreme by many persons, could have substantial support. It has, in fact, been suggested by some Indian groups, as evidenced by the recent action of members of the American Indian Movement to attempt establishment of diplomatic relations on behalf of tribal governments, with the United Nations foreign nations, and the United States, itself.” (Spaith, 1974)

AIM didn’t manage to achieve power and control over the reservations for themselves, but they started the heavy ball of tribal sovereignty rolling for elected leaders on the reservations and over the years, sovereignty has picked up speed, crushing tribal and non-tribal U.S. citizens alike in its path.

Due to the tribal sovereignty movement, several organizations were established to push back and protect the legal rights of individuals. Among them are Shawano County Concerned Property Taxpayers Association (SCCPTA), Upstate Citizens for Equality (UCE), Dakotans for Equal Rights (DER) and Aloha for All.

In this paper, we will examine how the AIM movement used media to spread militant propaganda to the point it was able to achieve dramatic support across the United States for tribal government control over powerless citizens. So successful was their effort that by 1978, a law was even passed to give tribal government’s authority and control over other people’s children. We will examine what their purposes might have actually been as well as how they went about it.

 

Analysis:

Some argue that ends justify the means. If one were talking about saving the life of a busload of children, that argument could potentially have merit. However, what was saved was tribal sovereignty at the expense of children. Granted, with rape and murder of children within the reservation system far outdistancing that of their neighbors off reservation, it is obvious some in authority genuinely believe this was a justified trade (Ombudsman, 2013).

The mistreatment of average tribal members who stood in AIM’s way is reminiscent of Marxists who had marched through Greece in the mid 1900’s. This is telling, as Marxism appears to have been an influence on at least some of the AIM members. AIM member Jimmy Durham wrote in his white paper concerning culture, revolution and the movement,

“…young white Marxists who have never been in real situations of struggle in a working-class movement, who in fact have seldom worked with anyone except fellow-students, and who come to us as though we were ignorant “lumpen proletariat” in need of being “taught”, not only Marxism, but the realities of our own struggle. . . (Durham, 1974)“

He goes on to say,

“…we have always defined our struggle not only as a struggle for land but also as a struggle to retain our cultural values. Those values are “communistic” values. Our societies were and are “communistic” societies. The U.S. government has always understood that very well. It has not branded us all these years as communists because we tried to form labor unions or because we hung out with the IWW or the Communist Party but because the U.S. government correctly identified our political system. It did not make that a public issue because that would have been dangerous, and because it has been far more efficient to say that we are savages and primitives.

“Marx used our societies as examples of what he meant by communism on two different occasions in his writings. He said that we are “Primitive Communists.” The word “primitive” means “first,” but people who have skimmed through Marx often decide, because of the connotations of the word “primitive” which come from political manipulation, that Marx meant that we were backward or “childlike” communists. Marx was, nonetheless, very Eurocentric, and he assumed that European history was the main body of humanity’s history.

“We do not need Marx’s words to teach us how to live our lives in our own society. We do not need to go through an industrial revolution so that we can come out as communists on the other side.

“We do need Marxism-Leninism as a method and system for knowing the human world as it is today and for knowing how most effectively to fight our oppressor. We do need to join forces with world Marxism-Leninism, because that is the liberation movement for the world. But we will not come into that world community as a “primitive” younger brother.

“Our struggle has always been not only to maintain our own lands and culture, but to fight the political system of capitalism itself. (Durham, 1974)”

There, in the words of founding AIM members, is the true purpose and goal of the AIM movement. Clearly, the American Indian Movement deceived its audience by concealing its true purpose and position, oversimplifying complex situations, and pretending certainty when valid and important questions remained unaddressed.

Adolf Hitler said in Mein Kampf,

“…in the ‘big lie’ there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves often tell small lies in little matters but would be ashamed to resort to large-scale falsehoods. It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously. Even though the facts which prove this to be so may be brought clearly to their minds, they will still doubt and waver and will continue to think that there may be some other explanation. For the grossly impudent lie always leaves traces behind it, even after it has been nailed down, a fact which is known to all expert liars in this world and to all who conspire together in the art of lying..”

Such is the case with the American Indian Movement and Tribal Sovereignty. Deception, propaganda and demagoguery appear to have been persuasion techniques skillfully used by AIM leadership.

Special Agent John Trimbach (SAC-Minneapolis), author of the book, “American Indian Mafia” tells  the true story of what happened at Wounded Knee that spring in 1972 as they “tore a path of destruction through the Pine Ridge Reservation on their way to personal gain, fame, and fortune…” (Trimbach, 2007).

Among the deceptions, AIM leaders:

  • Robbed citizens of Wounded Knee, the very people they claimed to be helping
  • Extorted funds from federal government, varied organizations, and unsuspecting supporters – keeping much of the money for themselves.
  • Persuaded public officials into excusing their criminal behavior by through invention of claiming “indigenous immunity” – thereby encouraging violence against other tribal members.
  • Conspired to murder opponents, including their own members.

According to Special Agent Trimbach,

“The 1970s legacy of the Pine Ridge Reservation in South Dakota is haunted by the forgotten suffering of innocent victims and a falsified history found in almost every library in America. Sadly, what should have been a needed voice for Native America became a criminal enterprise on the reservation, where property was destroyed and lives were lost. A record founded in falsehoods and distortions completed the betrayal and denied the reality of lost opportunities, shattered lives, and a Movement hijacked by its leadership. Today, the perpetrators are known as “brave warriors” and “selfless activists,” while many of their crimes against Indians are minimized, or not mentioned at all. (Trimbach, 2007)”

 This social movement went beyond persuasion into coercion. According to Senator James Abourezk,

“We got into the Indians’ perimeter and there’s all these Indian Vietnam vets who were there with AK-47’s Kalashnikovs, I don’t know where they got them all, but they had them. And we were driving slowly right, and they were following us, just like that. And the tension, I’m telling you was thick enough to slice,” (Abourezk Shares Means & McGovern Memories, 2012).

While violent tactics draw attention in the form of influence and are not persuasion (Larson, 2013), veiled by duplicity, AIM leaders were skillful in the presentation of their goals and activities. Despite the radical nature of their movement, they were able to present to the world an image of ethos and credible sincerity and persuade Congress to pass legislation favorable to tribal sovereignty.

Using the peripheral route of elaboration, AIM leaders aimed for the heart of non-tribal Americans, playing on what is popularly known as “white guilt.” Many dressed in traditional attire for photo-ops, or the very least wrapped themselves in a blanket, giving the impression to citizens on the east coast that many tribal members still dress in traditional manner on a daily basis.

Leaving out mention of the AK47’s as well as a video of Russell Means telling tribal leaders well beforehand that AIM intends to take over the village of Wounded Knee and wants their support (Wounded Knee – Occupation ’73, 1972), Senator Abourezk in a forward to his Library collection on Wounded Knee characterized the event as an unplanned and reasonable protest, stating that about 200 AIM members  “…enroute to Porcupine, South Dakota, stopped at the village of Wounded Knee” and just happened to take over “the trading post, museum, gas station and several churches.” AIM considered Wounded Knee to be of “historically significance and deemed the village an appropriate location from which to voice the concerns of AIM and the Oglala of the Pine Ridge Reservation (Abourezk, 1972).”

This recounting of events brings more questions than answers. Setting aside the fact they were not asked to take over the village by either the people of Wounded Knee or most of the Pine Ridge residents, what were 200 people traveling together to Porcupine South Dakota for?

Senator Abourezk waxed poetic about their altruistic purposes, saying AIM leaders supported:

“…reformation of tribal government as well as bringing attention to Native American grievances. Means, as an AIM spokesperson, requested congressional investigations into conditions on all reservations and the corruption of the BIA. Means specifically wanted a hearing to take place concerning treaties and treaty rights, along with an investigation of the BIA and the Department of the Interior at all agency and reservation levels. (Abourezk, 1972)”

 AIM leaders spoke of past atrocities and the robbing of land. “Broken treaties” became a brand phrase – although it has remained unclear whether all treaties were broken, or just a few, or whether it was an entire treaty or particular points. This was rarely, if ever, specified. Another point that has gone unmentioned in relation to the breaking of treaties was that no treaty ever promised federal money into perpetuity. Most, if not all, state that federal monies were to last only 20 years.

Further, while it is true that some lands were stolen, it is also true that non-members homesteaded some lands long before the land around it was deemed reservation land by the federal government, and tribal members who were intelligent, capable, and pleased with the sale legally sold some land to non-members. It is an extreme and demeaning insult to portray every tribal member who ever sold land as uneducated and incapable. In 1929, our U.S. Vice President, Charles Curtis was a Kaw Nation Native American Indian. Clearly, he was not the only tribal member in the United States able to understand and negotiate a contract.

However, these facts would involve the recipients of AIM’s persuasion and rhetoric to use careful and thoughtful consideration of the issue merits – the “central route” of information processing – and that it not the route AIM leaders chose to use for their publicity campaign.

They chose well. The American people listened to what was said, reacted with emotion, and did what they thought they could to alleviate the suffering of tribal members. Yet, years later, despite the efforts of AIM, federal government funds, and legislation increasing tribal control over persons of heritage, nothing has gotten better. In fact, some say things have gotten much worse. According to FBI Special Agent John Trimbach, the Pine Ridge Reservation continues to suffer from “many social malignancies such as unemployment near 90%, life expectancy of approximately 56 years, rampant alcoholism, and widespread child sex abuse (Trimbach, 2007).”

Richard Two Elk, a former resident of Wounded Knee, agrees. He has stated,

“After the occupation ended, the objectives had not been achieved” and “When AIM took over Wounded Knee village in 1973, they hijacked the legacy of that community and Lakota people for their own gain. Since 1973 to present, AIM has exploited and cashed in on the notoriety of their take-over. However, nowhere along the line have they bothered to share with the residents of Wounded Knee village any of their so-gotten gains.  ( The Stolen Legacy of Wounded Knee, 2009)”

Introducing fear is another tactic used in persuasion, and despite the smooth explanation given by Senator Abourezk, AIM introduced fear to both the non-tribal community as well as those they professed to represent.

Former Special Agent for the FBI, John Trimbach wrote,

Aquash was dragged from the trunk of a car near the reservation town of Wanblee, South Dakota, and shot in the head in December 1975. The alleged triggerman, AIM member John Graham, will stand trial in state court although no date has been set. Graham’s accomplice Arlo Looking Cloud was convicted in federal court of aiding and abetting the murder in 2004. Following a series of interrogations, AIM leaders falsely accused Aquash of being an FBI informant. One of her interrogators was convicted killer Leonard Peltier. At an AIM conference in June 1975, Peltier put a loaded gun in Aquash’s mouth to administer “truth serum.” The trail of evidence could lead to Peltier’s former boss, AIM co-founder Dennis Banks.”

 Two Elk also makes several comments addressing this,

“Russell Means does say, “Spies will be shot”

“…After AIM leadership was acquitted of all charges stemming from the take-over, they ran free-rein throughout the reservation. In the ensuing civil war between AIM and the goons, certainly there were more than 60 dead on both sides of that fence. Too many of these belonged to neither side, but were simply innocent victims caught in the cross-fire; such as the residents of Wounded Knee.”

“One death which occurred at Wounded Knee, which producers of [PBS program titled, ‘Wounded Knee,’] were made aware of but failed to mention, was the death of black civil rights activist, Ray Robinson. Failure to mention this at all is a clear indication to me that this is another public relations program for AIM.”

            “The program further asserts that AIM’s demise came about due to the government trying to tie it up in the courts. The producers of this program would like us to believe in fairy-tale fashion, that as a result AIM fell into disarray and violent infighting and simply lost their way. The fact is, AIM leadership flushed it down the toilet two years after Wounded Knee by ordering the interrogation and murder of Anna Mae Pictou Aquash because they suspected her of being an FBI spy. As the news of her murder rippled through Indian Country, the risk of falling into AIM crosshairs seriously diminished its following.”     

“…members of AIM have been charged, convicted, and have upcoming trials in the murder of AIM member Anna Mae Pictou Aquash.  ( The Stolen Legacy of Wounded Knee, 2009).” 

In fact, it was only in February 2014, that the FBI finally confirmed the death of Robinson. According to documents, a witness told agents “Robinson had been tortured and murdered within the AIM occupation perimeter, and then his remains were buried ‘in the hills.” (AP, 2014)

Tribal member had good reason to be wary of AIM. Jimmy Durham had inferred in a white paper early on that force might be necessary to get the majority of tribal members to cooperate with what AIM knew to be best for the tribes. He said,

“There are about a dozen American Indians in the U.S. today who say they are Marxist-Leninists. There are quite a few more who are in Marxist study groups. But the very large majority are, to differing degrees, verbally, “anti-communist” whilst their actions are communistic. But we need to be able to use the tools of Marxism-Leninism if we are to see effectively and fight our enemy. I do not believe that we have time to “let nature take its course,” or to have that kind of liberal “faith in the people” which means escaping one’s own responsibility for leadership and action.

Disorganization, lack of perspective and clarity, and everyone “doing their own thing” are American phenomena which are destructive to our struggle. Lack of strategic unity plays right into the hands of the enemy. A Marxist-Leninist analysis of the detailed realities of our situation, I believe, is the only way to combat such phenomena. (Durham, 1974)

Non-tribal members were first frightened by the take-over of the BIA building in Washington DC and more so by the take-over of the village of Wounded Knee. Believing that the rage of AIM members must have a valid source (much as many believe of Palestine today) ‘white’ Americans wanted to do whatever necessary to make things right. Two Elk notes,

“AIM’S takeover of Wounded Knee was a public relations battle for American hearts and minds they are still waging to this day. ( The Stolen Legacy of Wounded Knee, 2009)”

Narrative story telling might be viewed as cultural tradition. Some see it as a well-honed skill. It’s been said many tribal members have long enjoyed spinning stories for melanin-deprived visitors from the east, laughing privately at the subsequent responses. Some say that enjoyment continues. Many non-tribal members who’ve never lived on or near a reservation but have had a regular diet of Hollywood over the years are interested in descriptions, testimony and anecdotes of reservation life. This played very well into AIM’s method of persuasion and post hoc fallacy.

One persuasive symbol that came out of the fight for tribal sovereignty is children. Children were said to be the “lifeblood” of the tribe – necessary for the purposes of tribal sovereignty and the continuation of the tribe. Since then, the concept of children of heritage being the possession of tribal government has been widely circulated and accepted.

According to founding AIM papers,

A major objective of the movement is to regain the young. Once the BIA is eliminated and individual tribal states are created schools will not be a major problem. However, until such times as this goal is realized AIM must plan, support and execute the following school activities. (AIM, 1968)”

By 1978, Senator James Abourezk had become Chair of the Senate Indian Affairs committee, a committee that Senator Abourezk had been largely responsible for establishing. This committee was given jurisdiction over all legislation concerning Indian Affairs, including any socio-economic, healthcare, political, or trust issue involving Indian Country or its members.

The Indian Child Welfare Act (ICWA), sponsored by Senator Abourezk in 1976, was passed in 1978 with the specific intention of giving tribal governments authority in the custody decision of any child they deem to be a tribal member – whether or not the child’s parents or grandparents want tribal government to interfere in that custody decision. The intent, Congress said, was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. (Haga, 2013)”

More specifically, the ICWA intended “… to give Native American tribes a strong voice in child custody issues with an ultimate aim of ensuring tribes rights to maintain and preserve their language and culture. (5 Sioux Tribes Applied to Fund Their Own Foster Care Programs, 2014)”

Some would add – ‘and power and money.’ While calling for recognition of tribal sovereignty, AIM and tribal government leaders simultaneously demanded increased federal funding. Assertions that the children are theirs and federal government must totally abstain from interference are followed by claims that federal government does not adequately fund foster care on reservations. From oversight hearings to back room discussions to press releases, leaders have asserted that they are sovereign nations with the right to foster their own children, but it is incumbent on federal taxpayers to fund it.

“The solution to this hostile attitude toward the basic intent of ICWA is to give direct federal funding to the individual tribes to set up their own foster care, with adequate oversight, and get the state completely out of it,” said Daniel Sheehan, general counsel for the Lakota People’s Law Project. (Harriman, 2013)

Leaders insist on increased and perpetual federal funding – while simultaneously asserting sovereignty. Following the 2013 Supreme Court case, “Adoptive Couple vs. Baby Girl,” when the Court ruled and affirmed that a non-Indian, unwed mother has a right to decide the best interest of her child without interference from tribal governments, Senator Abourezk, the driving force behind the ICWA, responded,

“It’s an attack on tribal sovereignty through the children. I can’t believe they did this.” “The ICWA is in line with similar laws to bolster tribal sovereignty. That was our aim. We did everything we could to increase tribal sovereignty. That includes the Indian Child Welfare Act…”  (Harriman, 2013)”

AIM Leader Clyde Bellecourt, using familiar emotional buzzwords, agreed and said the Supreme Court decision “is legalizing the kidnapping, theft of children and division of Indian families once again by states and churches. Churches have a lot to do with this. (Harriman, 2013)”

Peter Lengkeek, a former member of the Crow Creek Tribal Council, also agreed the 2013 ruling on ICWA threatens tribal sovereignty. “We have to fight on a daily basis for protection and strengthening of our sovereignty. When things like this happen, it weakens it even more.”

It is clear that control of the children was integral and first step for those seeking power over other members. One of AIM’s plans from the start was that they would implement and run a National Center providing basic teaching aids such as reading, cultural materials and lore to other people’s children – most of whom were and are multi-racial. AIM stated it would begin with pre-school and elementary education as “most behavior characteristics are learned within the first 5 years (AIM, 1968).”

Rhetoric aside, what has been overlooked is that according to the last two U.S censuses, 75% of tribal members do not live in Indian Country (U.S. Census 2010, 2011). Many (not all) have purposefully taken their children and moved away due to high crime on reservations and tribal government corruption. Further, most of the children and families affected by ICWA are of more than one heritage. As much as tribal leaders have wanted control of the children in order to preserve sovereignty, many parents of enrollable children did not want tribal government interfering with their families.

Nevertheless, this is not what the public was told. Instead, they were given the impression that most, if not all, persons of tribal heritage are in agreement with statements by AIM and tribal leaders. The general public has been told that meddling social services, abusive foster homes and unscrupulous adoptive parents were stealing all the children.

The words “stealing,” “stolen,” “kidnapping,” “theft,” “Trail of Tears” and “genocide” are all used quite often to play on perceived white guilt. The imagery of defenseless children stolen from their beloved family for the purpose of money and power was all that was needed to persuade a willing public that something needed to be done. The most common reaction seemed to be, “We took their land, now we are taking their children? Certainly, these were the tribe’s children and they belonged with the tribe.” For many, allowing tribal leaders control over the children seemed the right thing to do, bringing atonement and alleviating guilt.

Other members of the public and some Congressmen, faced with uncertainty over land titles and possible economic loss, unfortunately looked at the ICWA as a faux compromise, thinking they would have security and cognitive dissonance if tribal governments settled for jurisdiction over children rather than asking for land back.

Unbeknownst to this willing public, once ICWA was passed some tribes began taking defenseless children from their beloved family for the purposes of money and power (Tevlin, 2013). Further, land titles are not something some tribal governments are – or ever were – willing to compromise on.

While the words “stealing,” “theft,” “Trail of Tears” and “genocide” played on white guilt, they also stoked strongly held beliefs and anger in many tribal members – gaining more internal AIM support for a time. There is a human tendency to want to believe a powerful force is behind overwhelming problems, making those problems beyond one’s ability to manage. In this case, some tribal members were open to believing that a powerful white society was at root of all troubles on the reservations.

For other members, the organization fulfilled security, affiliation, and prestige needs. Another persuasive technique successfully used on fellow tribal members by AIM leaders was speaking to an inner longing for “Eternal Return” – a rejection of concrete historical time as it really happened and substituting a return to an interpretation of history as one wishes it might have been.

There was no social media in the 1970’s, but AIM leaders used the spoken word, written word and film effectively to spread their message. They printed their own newsletters and spread them to various reservations through what they called a “railroad” – runners traveling (by car) from one reservation to the next, delivering newsletters, flyers and other information. Using this method, they hoped to prevent their opponents from accessing their material as much as possible. For public broadcasts, they used local and national news agencies. Creating attention-getting events was critical to getting the media attention they needed.

On their later website, they omitted mention of violence or crime initiated by AIM members and used wording that would play at heartstrings of tribal members and non-members alike. Despite a published video of Russell Means talking to tribal leaders prior to Wounded Knee, telling them of the planned takeover and asking leaders for their support (Wounded Knee – Occupation ’73, 1972), AIM wrote as if the event was unplanned and altruistic,

“In 1973, more than 2,000 American Indians came to Wounded Knee…following a courthouse disturbance. At this historic site where a massacre of Indians by U.S. cavalry soldiers in 1890 ended years of armed conflict, the demand for hearings on sovereignty rights was met with a siege by FBI forces, Federal marshals, and BIA police (AIM, 1968).

 Using these persuasive techniques, AIM accomplished three of the five states of campaign development: Identification, legitimacy, and participation. They stopped short of penetration and distribution when their unpredictability and violence became too much for most tribal members – although Senator Abourezk, Rep. Nancy Pelosi and other elite ‘left of center’ persons on the national and international level inexplicably continued to associate and interact with the AIM leaders.

Senator Abourezk was so fond of Russell Means; he hired him as a staff person in his DC office. Means was the only convict in history to work for a Senator while serving prison time (Russell Means: About, 2014).

In the Social Movement Model of persuasion, AIM went quickly from “Social Unrest” to “Maintenance” and then “Termination” mode as many supporters lost faith and patience.

 

Conclusion: 

The American Indian Movement and its supporters used deceptive and unethical persuasion methods throughout most of its existence. While purporting to be a non-violent entity focused on the well-being and betterment of the people they represent, they were in fact focused on controlling the people – at times through violence.

Tribal sovereignty was the primary and prized goal – at the expense of individuals, children and families.

The American Indian Movement was initially established in Minneapolis, Minnesota, for good reason and helped poverty-stricken Native American families at its start. However, as they garnered and felt the pleasure of attention and support, they quickly switched to a national, militant focus resulting in deep and unrecognized destructive and oppressive impact on families of all heritages across America.

AIM’s actions over the next few years went far beyond a legitimate push for justice, jobs and housing.  In 1973, AIM members violently took over the small town of Wounded Knee, South Dakota and conducted a siege that lasted over 2 months. People of Wounded Knee claim that during the event, many of them were robbed and beaten, and some were killed.

The stated goals of justice, housing and jobs, while possibly initial goals of some members and branches of AIM, were not the end goals of its leadership. Instead, there was a factual push was for “tribal sovereignty” – the ability for certain tribal leaders to control other persons of Native American heritage as well as tribally owned resources and assets.

Unfortunately, there was a power struggle within the first couple of years. Tribal leaders already in power on reservations were not willing to give it up to this young new group. Wide disagreement existed in the native community concerning AIM and its agenda, especially after reports of violence against members began to surface.

As tribal supporters fell away, AIM declined as a leading organization. Yet, while many Native American families saw AIM as thugs, federal government officials inexplicably began to treat AIM leaders as legitimate authorities speaking for community members.

Tribal sovereignty, which was not on the radar of most people in the 1970’s, was now widely assumed reality. AIM didn’t manage to achieve power and control over the reservations for themselves, but they started the process for obtaining it for elected leaders on the reservations. Within a short time, sovereignty picked up speed, crushing tribal and non-tribal U.S. citizens alike in its path. So successful was the tribal sovereignty movement that by 1978, a law was passed giving tribal government’s authority and control over other people’s children.

The American Indian Movement and its supporters used deceptive and unethical persuasion methods throughout most of its existence. This has been apparent to many in law enforcement, if not the public. Senator Abourezk himself was monitored and investigated by the Denver police in the 1990’s while they investigated AIM’s activities.

Evidence of criminal activity aside, inconsistencies in claims and reasoning have been abundant.

It is recommended that readers look deeper into the protests and writings of tribal members and families affected by the Indian Child Welfare Act to learn how tribal government sovereignty has hurt them as individuals and families.

 

References

5 Sioux Tribes Applied to Fund Their Own Foster Care Programs. (2014, June 26). Retrieved from Lakota People’s Law Project: http://indiancountrytodaymedianetwork.com/2014/06/26/5-sioux-tribes-applied-fund-their-own-foster-care-programs-155501

A Pilot Study of Compliance in North Dakota, (December 2000) by NICWA and Casey Family Programs

Abourezk Shares Means & McGovern Memories. (2012, October 24). Retrieved October 5, 2014, from Keloland.com: http://www.keloland.com/newsdetail.cfm/abourezk-shares-means–mcgovern-memories/?id=138966

Abourezk, J. G. (1972). THE OCCUPATION OF WOUNDED KNEE, 1973 – American Indian Movement. House of Representatives. Wounded Knee: U.S. Government. Retrieved October 6, 2014

ACF. (2007). Tribal Child Counts. Washington DC: Child Care Bureau, Office of Family Assistance. Log No: CCDF-ACF-PI-2007-02

Adoptive Couple vs. Baby Girl, 133 S. Ct. 2552 (U.S. Supreme Court June 25, 2013).

AIM. (1968). “Self Determination of Free Peoples”: Founding Documents of the American Indian Movement (AIM). Retrieved October 1, 2014, from History Matters: http://historymatters.gmu.edu/d/6897

AIM. (1972, October). Trail of Broken Treaties: 20-Point Position Paper. Retrieved September 6, 2014, from Ogihidaag Blog: http://ogichidaag.wordpress.com/2011/02/08/american-indian-movement-trail-of-broken-treaties-20-point-position-paper-1972-never-forget/

AIM History Part 2 (2008, October 10). [Motion Picture]. Retrieved September 4, 2014, from http://youtu.be/tSVNYFXp5c8

AP (2014). FBI confirms black activist was killed during 1973 occupation of Wounded Knee. Sioux Falls: Associate Press. Retrieved October 6, 2014, from http://www.cbsnews.com/news/fbi-confirms-activist-ray-robinson-was-killed-during-1973-occupation-of-wounded-knee/

AP (2014, April 28). 42 people killed in homicidal violence in 2013 on country’s largest Indian reservation. Retrieved from Fox News: http://www.foxnews.com/us/2014/04/28/42-people-killed-in-homicidal-violence-in-2013-on-country-largest-indian/

Belford, D. (Director). (2012). Life with James [Motion Picture].

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BIA ICWA Guideline Changes (April 30, 2014) by Elizabeth Morris

Boxer, A. (2009). Native Americans and the Federal Government. Retrieved Sept 6, 2014, from History Today: http://www.historytoday.com/andrew-boxer/native-americans-and-federal-government

CAICW. (2013, August 8). Family Stories. Retrieved from Christian Alliance for Indian Child Welfare: http://caicw.org/family-advocacy/letters-from-families-2/

Cross, T.L. (1995a). Heritage & helping: A model curriculum for Indian child welfare practice, Module II: Protective services for Indian children. Portland, OR: National Indian Child Welfare Association.

Cross, T.L. (1995b). Heritage & helping: A model curriculum for Indian child welfare practice, Module IV: Family-centered services for Indian children. Portland, OR: National Indian Child Welfare Association.

Danger, F. (2013, July 5). My Uterus Will Not Be Used To Fill Your Tribal Rolls: . Retrieved from xojane.com: http://www.xojane.com/issues/my-uterus-will-not-be-used-to-fill-your-tribal-rolls-i-fought-the-icwa-and-won?utm_medium=facebook

Domestic and Sexual Violence outside the Reservations in North Dakota get lots of attention from the ACF.  (September 2013) Email Correspondence between ACF Officials

Durham, J. (1974). AMERICAN INDIAN CULTURE: TRADITIONALISM AND SPIRITUALISM IN A REVOLUTIONARY STRUGGLE. Retrieved October 1, 2014, from History Matters: http://historymatters.gmu.edu/d/6904/

Editorial. (2013, July 5). Might Indian child welfare law one day be deemed unconstitutional? Retrieved from NewsOK.com: http://newsok.com/might-indian-child-welfare-law-one-day-be-deemed-unconstitutional/article/3858899/?page=2

Frosch, D. (2013, January 26). Focus on Preserving Heritage Can Limit Foster Care for Indians. Retrieved from NYTimes: http://www.nytimes.com/2013/01/27/us/focus-on-heritage-hinders-foster-care-for-indians.html?_r=2&

Giese, P. (n.d.). For The Spirit of Annie Mae. (J. Dill, Ed.) Retrieved October 6, 2014, from http://www.dickshovel.com/dur.html

Haga, C. (2013, April 22). ND: At reservation, challenge can be to keep Indian children safe – and Indian. Retrieved from National Child Welfare Resource Center for Tribes: http://www.nrc4tribes.org/news.cfm?a=194

Harriman, P. (2013, June 26). Tribal sovereignty threatened by ruling on adopted Indian kids. Retrieved September 23, 2014, from Argus Leader: http://archive.argusleader.com/article/20130626/NEWS/306260022/Video-Tribal-sovereignty-threatened-by-ruling-adopted-Indian-kids

HEARINGS BEFORE SUBCOMMITTEE ON INDIAN AFFAIRS, U.S. SENATE 99th CONGRESS 2ND SESSION. (1974, 4 8). Retrieved 9 6, 2014, from Lifting the Veil: http://liftingtheveil.org/byler.htm

HONORABLE BJ JONES **- CHIEF JUDGE PRAIRIE ISLAND INDIAN COMMUNITY TRIBALCOURT, S.-W. O.-T. (2007). Legislative History of the Indian Child Welfare Act. Retrieved from Christian Alliance for Indian Child Welfare: http://caicw.org/family-advocacy/legislative-history/#BJJonesHistory

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KARNOWSKI, S. (2013). Feds Say Native Mob Gang Dented but Work Remains. Minneapolis: ABC News.

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Lawrence, B. (2007). Publisher. Native American Press/Ojibwe News.

Mannes, M. (2006, October 11). FACTORS AND EVENTS LEADING TO THE PASSAGE OF THE INDIAN CHILD WELFARE ACT. Child Welfare, 74(1, Jan/Feb 95), 264-282. Retrieved September 6, 2014, from http://www.srwoodbridge.com/wordpress/wp-content/uploads/Factors.pdf

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 October 12, 2014  No Responses »
Jun 152014
 

This letter was printed in the Grand Forks Herald and Bismarck papers Thursday, June 12, 2014, and read on air during the Jay Thomas radio show Friday, June 13, 2014

____________________________________________________

To the Editor.

Concerning the upcoming event featuring President Obama and Senator Heitkamp at the Standing Rock Reservation on Friday, June 13th:

North Dakotans are a gracious and forgiving people and will politely welcome the president to our wonderful state.

However, before he gives his speech concerning the wonderful “Nation to Nation” relationship he has with tribal leaders and announces what further moneys and authorities he will bestow upon them – he needs to learn facts from those whom his edicts directly affect.

  • One: According to the last two U.S. censuses, 75% of tribal members DO NOT live in Indian Country – and many have deliberately taken their children and left in order to protect their families from the rampant crime and corruption.
  • Two: The abuses at Spirit Lake here in North Dakota are well known, but it is also known that Spirit Lake is just a microcosm of what’s happening on reservations across the country.
  • Three: These abuses are rampant on many reservations because the U.S. Government has set up a system that allows extensive abuse to occur unchecked and without repercussion.
  • Four: Many, many times more children leave the reservation system in the company of their parents, who have mass exited – than do children who have been taken into foster care or found a home in adoption.  But tribal leaders can’t admit parents are consciously taking their kids out of Indian Country in attempt to get them away from the reservation system and corrupt leaders. It makes a better sound bite to blame it on evil social services

President Obama, please listen to those who do not have a vested financial interest in increasing tribal government power, and learn about the physical, emotional, sexual and financial abuse of tribal members by other tribal members and even many tribal leaders.

STOP supporting corrupt tribal leaders and corrupt systems and pretending all is okay in Indian Country.

Every time power to tribal leaders is increased, tribal members – U.S. citizens – are robbed of civil freedoms under the constitution of the United States.

More power given to tribal leaders means less freedom, safety and constitutional rights for tribal members.

 June 15, 2014  No Responses »
Sep 172013
 
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 September 17, 2013  No Responses »