Indian Child Welfare Act (ICWA) – Dying In Indian Country

Minority Report: Congressional Commission on Native Children

Mar 012024

To the President of the United States, the Speaker of the House of Representatives, and the President Pro Tempore of the Senate:

Pursuant to the Alyce Spotted Bear and Walter Soboleff Commission on Native Children authorizing legislation (Public Law 114-244), October 14, 2016, as amended, I respectfully submit a Minority Report of the Commission on Native Children.

This report attempts to include the perspective of those Native Americans who live outside of the reservation system and do not use any form of tribal benefit or program. Indeed, about 75% of Native Americans do not live on reservation land or participate in reservation politics. As a result, countless families of Native American heritage are not heard through methods normally employed by those assessing the needs of the United States’ native population.

This is significant as legislation and administrative rules often include them and their children, whether they have chosen to be involved with the reservation system or not.

With their voices in mind, this report presents additional recommendations, several of which were presented to the Commission but were not put forward for discussion or vote.

Due to the strength of an ‘iron triangle’ encompassing federal Indian policy, it is necessary to submit this minority report.

A Minority Report – February 27 2024 Download

Respectfully submitted,

Elizabeth Morris

Alyce Spotted Bear and Walter Soboleff Commission on Native Children

March 1, 2024 28 Responses »

Arizona v. Navajo Nation: SCOTUS Zags Back

Jul 012023

By Rob Natelson for the Federalist Society

June 27, 2023

Indian law, including Indian constitutional law, is famously chaotic. With the Supreme Court’s 5-4 decision in Arizona v. Navajo Nation, it just got more so.

Although the Court likely reached the correct result, a key part of the majority opinion seems to conflict with a pronouncement last week in Haaland v. Brackeen.

I discussed the Brackeen case in this space a few days ago. Justice Amy Coney Barrett’s majority opinion broadened Congress’s power to “regulate Commerce . . . with the Indian Tribes” into one to regulate all “Indian affairs”—a formulation rejected explicitly by the Constitutional Convention of 1787. To buttress her conclusion, Justice Barrett resorted to recitals of federal authority, unstated in the Constitution, but often cited by advocates of congressional power:

We have also noted that principles inherent in the Constitution’s structure empower Congress to act in the field of Indian affairs . . . . With this in mind, we have posited that Congress’s legislative authority might rest in part on “the Constitution’s adoption of preconstitutional powers necessarily inherent in any Federal Government . . . Finally, the “trust relationship between the United States and the Indian people” informs the exercise of legislative power.

However, in Arizona v. Navajo Nation, Justice Brett Kavanaugh’s opinion for the court follows the 2011 decision in United States v. Jicarilla Apache Nation to reject any free floating, extra-constitutional trust relationship:

The Tribe asserts a breach-of-trust claim. To maintain such a claim here, the Tribe must establish, among other things, that the text of a treaty, statute, or regulation imposed certain duties on the United States. See United States v. Jicarilla Apache Nation . . . The Federal Government owes judicially enforceable duties to a tribe “only to the extent it expressly accepts those responsibilities.” Jicarilla . . . Whether the Government has expressly accepted such obligations “must train [sic] on specific rights creating or duty-imposing” language in a treaty, statute, or regulation.

Thus, in the Court’s view, any government-tribal trust relationship must be grounded in a “treaty, statute, or regulation.” It is not inherent in all government-tribal relations and cannot be a source of, or even necessarily “inform,” legislative power.

In this case, the Court held that the only possible basis for the Navajos’ claim was an 1868 treaty between the United States Government and the tribe.

The Nuts and Bolts of the Case

Arizona v. Navajo Nation was basically a water rights dispute. Under a rule established in Winters v. United States, when the federal government cedes land to an Indian tribe, in the absence of language to the contrary, the government also impliedly cedes sufficient water rights to meet the purposes of the grant. Thus, when the government conveys land for a reservation, it implicitly conveys sufficient water for the reservation to become a going concern.

Incidentally, in the arid western United States, these “Winters rights” often become a sore point. As the Navajo Nation argued in this case, tribes frequently claim they are entitled to more water than they are getting. But satisfying a tribal claim may require infringing bought-and-paid-for state water rights held by non-tribal members. The resulting animosity between a tribe and its non-tribal neighbors can be bitter.

No one disputed that the 1868 treaty implicitly conveyed water rights to the Navajos. But the tribe contended that the treaty also required the federal government to undertake certain affirmative duties pertaining to that water. The exact scope of those affirmative duties was a matter of dispute between Justice Kavanaugh and Justice Neil Gorsuch, who wrote for the four dissenters.

Interpreting treaties—like interpreting almost all other legal documents other than (in modern dogma) the Constitution—is a purely originalist enterprise: Once the court held that the Navajo Nation’s claim could be justified only by the 1868 treaty, the case became a straightforward matter of finding the “intent of the parties.” In Justice Kavanaugh’s words, “[A] treaty’s interpretation, like ‘a contract’s interpretation, [is] a matter of determining the parties’ intent.’ . . . That means courts must look to the ‘shared expectations of the contracting parties.’”

In Indian treaties, finding the “parties’ intent” requires applying the familiar presumptions that ambiguous terms are construed against the drafter (generally the government) and making allowances for power disparities and language and cultural differences.

Justice Kavanaugh points out that, although the 1868 treaty imposed some affirmative obligations on the government, it did not impose affirmative obligations related to water. He therefore concluded that there were none. Of course, this is an exercise of another principle of documentary interpretation: Inclusio unius est exclusio alterius—the inclusion of one implies the exclusion of the other. The principle arises because observation tells us that when parties insert a list in a document, they probably intend to exclude items they did not put on the list.

Other Opinions

Justice Clarence Thomas joined the opinion of the Court, but concurred as part of his ongoing plea for more coherence in Indian law. In particular, he noted how the government-tribal “trust relationship” has been characterized both as the result of specific engagements and as a free-floating obligation.

Justice Gorsuch’s dissent, like his concurrence in Brackeen, begins with a lengthy history and a recital of Indian grievances. His more effective argument, however, is that the Navajo request was far narrower than the majority assumed—that the Navajos sought merely that the government determine the scope of the tribe’s reserved water. He added that the Navajo had been waiting a very long time for an answer:

To date, their efforts to find out what water rights the United States holds for them have produced an experience familiar to any American who has spent time at the Department of Motor Vehicles. The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another. . . . At each turn, they have received the same answer: “Try again.” When this routine first began in earnest, Elvis was still making his rounds on The Ed Sullivan Show.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at info@fedsoc.org.

July 1, 2023 No Responses »

The Cult of Advocacy: Comments on the State of Legal Scholarship

Oct 312022

By Rob Natelson – October 23, 2022 – Independence Institute.org

This posting relates some experiences from my long career writing for legal academic journals. It was triggered by Professor Gregory Ablavsky’s response to my “Cite Check” of his article, Beyond the Indian Commerce Clause (“Beyond”), and I use features of that response for some of my examples. But if you are interested only in a shortcut telling you who is being accurate in the Natelson-Ablavsky exchange, then I recommend the following:

* Read his quoted extracts from Beyond and from his Fifth Circuit appeals court brief. They are in the Cite Check, which cites to the original documents so you can verify the accuracy of my reproductions.

* Next, read the quotation in the original source. These also are reproduced in the Cite Check.

* Compare the original source with how Ablavsky represented it. The differences should be apparent to any fair minded person. And the reasons behind the differences should be obvious.

The Larger Context: The Cult of Advocacy

That said, the fundamental problem addressed here goes far beyond selective quotation. It is that much—likely most—law review writing is not scholarship at all; it is advocacy in scholarly drag.

The passionate desire to “prove the case” creates incentives to engage in selective quotation. It also fosters other questionable practices: enlisting irrelevant evidence, ignoring and manipulating relevant evidence, and substituting word play for more substantial material. More rarely, you find what appears to be outright plagiarism, as I discovered recently in a law professor’s article in American University Law Review.

The cult of advocacy encourages commission of such misdemeanors, and they are further enabled by how legal academia hires law professors, defines their jobs, and operates law journals.

First Experiences

In 1971, I was a second year law student beginning a stint on the Cornell Law Review. One day a senior editor (i.e., a third year student) assembled us newbies and told us we should start working on our student notes. (A note is a short article on a legal topic by a student law journal staffer.) He handed us a list of suggested topics prepared by the senior editors. Most or all of the topics explicitly prescribed our conclusions. The one I (reluctantly) accepted read something like, “Explain why the New York courts should grant summary judgment more readily in personal injury cases.”

After researching every relevant case, I concluded that, in fact, New York State courts should not grant summary judgment more readily in personal injury cases. I reported this to a senior editor, and that proved to be one step in the deterioration of my relationship with the editorial board.

Another step occurred when I was sent to the library to edit an article by a law professor from another school. The text of the article was substantially complete, but the footnotes contained many gaps. Quite a few featured the instruction, “Student: Find sources to support text.” When I inquired as to why we had accepted such an unfinished and obviously biased article, a member of the editorial board told me the…

October 31, 2022 No Responses »

The Indian Child Welfare Act: An Unconstitutional Attack on Freedom

Mar 082022

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 »

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

Oct 112021

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 »

The Ramifications of Native American Heritage on U.S. Constitutional Protections (Video)

Apr 202017

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 »

Child Abuse and Death Within Indian Country

Nov 012016

The original question for this paper was “How has the Indian Child Welfare Act affected the death rate of children living in Indian Country?” However, data concerning deaths of children placed under the Indian Child Welfare Act is difficult, if not impossible, to obtain. Tribal governments are not required to collect or share the outcomes of children affected by the Indian Child Welfare Act, and after extensive research, it is doubtful a comprehensive database with this information currently exists. According to the National Indian Child Welfare Association, “…incidents of child maltreatment that occur under a tribe’s exclusive jurisdiction and where tribal services are provided are not necessarily reported to the state and included in national data systems” (NICWA 2015). Janet Franson, retired homicide investigator and founder of ‘Lost and Missing in Indian Country,’ wrote in reference to children missing within the last decade, “…there were all kinds of missing N/A people in Indian Country [that] were not getting the attention they deserved. Not from law enforcement and not from any national entity for missing persons. My belief is that at least 50% of those missing are homicide victims” (Franson, 2106).

In an April, 2016, interview with The Chronicle of Social Change, Administration on Children, Youth and Families Commissioner Rafael López confirmed the absence of ICWA data, stating, “Not being able to articulate very clearly what’s happening to all children, let alone American Indian and Alaskan Native children, is unacceptable.’ (Kelly 2016). In 2015, the ACF initiated database collection for all children of tribal heritage who present before a court for foster care, but it didn’t go far enough. “HHS had determined that it did not have jurisdiction to collect information on Native American youth through the enforcement authority regarding ICWA and, therefore, was not able to make the requested changes or additions to the AFCARS data elements regarding ICWA” (Kelly 2016)

However, since then, “…legal counsel re-examined the issue and determined it is within ACF’s existing authority to collect state-level ICWA-related data on American Indian and Alaska Native (AI/AN) children in child welfare systems…” (Kelly 2016) All 50 States have now received guidelines pertaining to the data they are to keep. Obviously, it will take time for the ACF to collect and evaluate the data. Complicating matters, several tribal entities are now claiming “data sovereignty,” with the right to govern how data concerning their membership is collected and used, leaving an open question of manipulation and accuracy. That all said, reporting on what is known in the immediate remains necessary, as the effect of ICWA on children today remains critical. With this reality in mind, we will sidestep the original research question and instead ask, “Have children who fall under the jurisdiction of the Indian Child Welfare Act been consciously placed by courts and social services into dangerous living situations?” To do this, we will identify some correlations that suggest causation, using data from the very sources that support and promote the ICWA.

“Have children who fall under the jurisdiction of the Indian Child Welfare Act
been consciously placed by courts and social services into dangerous living situations?”

In 1978, Congress passed the Indian Child Welfare Act, “declar[ing] that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes. . .” Since that time, there have been numerous anecdotal and occasionally documented reports of children removed from admittedly safe homes outside of Indian Country, only to be placed in questionable homes within Indian Country where they have been abused or sometimes murdered. Many of the children affected by the ICWA are multi-heritage and have never lived in Indian Country prior to being placed under the jurisdiction of the ICWA. Many come from families who left Indian Country over a generation ago due to a high level of crime and corruption on their home reservation. The national dilemma has become whether the “best interest” of children, along with their right to safety, privacy and choice, is of less priority than tribal sovereignty and the future of the tribe.

Every state has statutes addressing child protection, foster care and adoption, under which children of every heritage could receive the same standard of protection. However, children deemed eligible for membership in a federally recognized tribe are exempt from these state mandated protections. Through the prevalence of accounts from individuals and families affected by ICWA, there appears to be a troubling percentage who have been drastically harmed following intervention and placement through the ICWA. It is probable an unacceptable percentage of children have been hurt by the Indian Child Welfare Act.

White papers concerning the benefits of ICWA are readily available from tribal governments, organizations, and the federal agencies that support tribal governments. Finding documented information concerning children who have been negatively affected by the ICWA is much more difficult. This is because tribal governments are the primary aggregators of statistics concerning their memberships and they are not required to report all of their data to federal agencies.

Rather than ask the question of how the Indian Child Welfare Act has affected the ‘best interest’ of children – which is too subjective for measurement – we seek an answer to as to whether children have been deliberately placed as a result of ICWA intervention into homes known for violence, sexual abuse or criminal activity. The answer could be used to establish equal protection for all United States citizens, no matter their heritage or age.

Search terms will include:

• Indian Child Welfare Act
• Native American Indian Reservation
• Indian Child
• Murder
• Death
• Sexual abuse (as is sometimes associated with death)
• Child abuse
• Indian child foster care
• Indian child adoption
• Obituary

Procedures to ensure a comprehensive balance will include literature published by tribal entities and organizations, state and federal agencies, foster and adoptive care organizations, non-profit advocacies, health organizations, and letters from affected individuals and families. It is important to include non-tribal entities in the study in order to ensure a comprehensive balance, as many of the children affected by ICWA have never lived in Indian Country and come from multi-heritage families.

Search engines, databases, and scholarly journal publications to be used:

• Indian Health Service
• State child protection agencies
• U.S. Census
• National Indian Child Welfare Association reports
• Administration for Children and Families reports
• Local obituaries
• Christian Alliance for Indian Child Welfare

Introduction

Toddler Lauryn Whiteshield was murdered a little over a month after her arrival to her grandfather’s home 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 to have been abusive to children in the past. This happened during a period when both the BIA and US Attorney’s office had taken over law enforcement and social services on the Spirit Lake Reservation due to a rash of uninvestigated child homicides and were supposedly monitoring placements to prevent further murders. This case did get media attention in North Dakota, and as a result, the perpetrator was quickly arrested, tried, convicted and imprisoned all within five months. However, none of the officials who were responsible for placing her in the home were held accountable. Jeanine Russell, the non-native foster mom the girls were taken from, read a victim’s impact statement for the sentencing of the murderer of Lauryn. She asked the judge to hold the perpetrator accountable, but also hold the broken system accountable. The federal government, she said, allowed it to happen, and “ICWA can be an evil law when twisted to fit the tribes wants or needs” (CAICW 2014).

From the Goldwater Institute concerning Lauryn, “The forced transfer from a safe, loving foster family to a home that posed great and obvious danger to the girls did not happen in a third-world country but in the United States. It did not happen 40 or 60 years ago but in 2013. And it did not happen because the court ignored the law but because it followed it. Had any of the child custody laws of the 50 states been applied, in all likelihood Laurynn would be alive today. That is because state laws require consideration of the “best interests of the child” in determining termination of parental rights, foster placements, and adoptions. That bedrock rule protects all American children—except children of Native American ancestry, like Laurynn. Although she had never lived on a reservation, because of Laurynn’s ancestry, she was made subject to the Indian tribe’s jurisdiction, which determined it was better to “reunify” her with a grandfather with whom she had never lived instead of the non-Indian foster family who had raised her from infancy and wanted to adopt her.” (Bolick 2015).

Who are the children

Patrice Kunesh, in a report published in the South Dakota Law Review, noted there was “a steady and substantial increase in the American Indian population in the past century, from a low of 250,000 in 1900 to 524,000 in 1960, to 1.96 million in 1990, and over 4 million in the year 2000. (Kunesh 2007, 7) The largest tribal government in the year 2000 was the Cherokee Nation with 729,533 members, and the Cree Nation was the smallest, with 7,734 members. The States with the heaviest AI/AN populations are Alaska, Oklahoma, Arizona, New Mexico, North & South Dakota, and Montana” (Indian Country Child Trauma Center 2005).

A reading of varied Indian Country sources of statistics can be confusing and at times contradictory. According to the Northwest Frontier Addiction Technology Transfer Center Network, the 2000 Census indicated “American Indians make up one to two percent of the United States population, with greater than 500 American Indian tribes and 250 Alaska Native villages.” (NW Frontier ATTC 2003). The Indian Country Child Trauma Center, also citing the 2000 census, related that “38% of the AI/AN population is under the age of 18; 9% of the population is under the age of 5,” “4.1 million U.S. residents identified as American Indian and Alaska Native (AI/AN) alone or in combination with one or more races,” and “2.5 million who reported as American Indian or Alaska Native alone represented 0.9% of the population” (Indian Country Child Trauma Center 2005). These last statistics reflect the high percentage of multi-racial families – and therefore the high percentage of non-tribal extended family.

The Center for Native American Youth correctly reported 566 federally-recognized tribes located in 35 states in 2014, but appears to have erroneously claimed the 2000 census put 47 percent of AI/ANs on reservations or other US Census-defined tribal areas” (Center for Native American Youth 2011). Most sources agree statistics show over 75% of Native Americans live outside of Indian Country, with many families having left the reservation system a generation or more ago. In fact, the CNAY has quoted the 2011 estimate by the US Department of Health and Human Services (HHS) Office of Minority Health (OMH) that only “22% of AI/ANs lived on reservations or other US Census-defined tribal areas” (Center for Native American Youth 2014). CNAY also mishandled numbers when referring to AI/AN’s below the age of 18, stating, “The ‘media’ [sic] age of this group is 29.7 years” (Center for Native American Youth 2011).

However, CNAY did clarify a point other sources omit: “According to the 2010 Census, there are approximately 5.2 million self-identified American Indian/Alaska Natives (AI/ANs) living in the US, of whom 2 million qualify for federal services” (Center for Native American Youth 2014). This statement indicates that while many tribal entities use the larger, ‘self-identified’ census number when wanting Indian Country to appear as large as possible, the enrolled, federally recognized AI/AN population is not 5.2 million, but only “an estimated 2 million” – those being the ones eligible for federal services. The balance may self-identify as Native American, but are not enrolled in a federally recognized reservation. This could be for any number of reasons, including that they have heritage, but do not meet the qualifications for enrollment; that they have heritage, but consciously choose not to enroll; or they have no actual heritage, but have been told they do, believe they do, or wish they did.

The Bureau of Indian Affairs confirms the smaller numbers with a set of consistent but older statistic: “According to the U.S. Bureau of the Census, the estimated population of American Indians and Alaska Natives, including those of more than one race, as of July 1, 2007, was 4.5 million, or 1.5 per cent of the total U.S. population. In the BIA’s 2005 American Indian Population and Labor Force Report, the latest available, the total number of enrolled members of the (then) 561 federally recognized tribes was shown to be less than half the Census number, or 1,978,099. (BIA 2016)

Still, most tribal entities currently quote the larger number (now 5.2 million) when discussing the size of the tribal population nationwide, and use comparable numbers when discussing the number of children under the authority of the ICWA: “Currently, 5.2 million American Indians and Alaskan Natives reside within the United States a number constituting 2% of the American population (US Census Bureau, 2011). (Hyland 2014, 4) The CNAY, although having confirmed there are only about 2 million enrolled tribal members in all the nation, goes on to claim “There are currently over 2.1 million American Indians and Alaska Natives (AI/AN) under the age of 24 living in the United States” (Center for Native American Youth 2014). The ICWA only pertains to children eligible for enrollment.

Poverty as source of child trauma

There are over 2 million children and young adults in the United States who have been identified by others as having AI/AN heritage, but most have never experienced reservation life. Tribal organizations appear confused as to whether that is good or bad in relation to poverty. When explaining the catalyst for social problems on the reservation, poverty is almost always cited. According to the NCAI Policy Research Center, “The poverty rate among AI/ANs in 2010 was 28% (OMH), and 32.4% of the population under-18 lives in poverty” (Center for Native American Youth 2014), and according to the Bureau of Labor Statistics, unemployment rates for AI/ANs in 2011 were at 14.6% “…Some tribal communities report persistent rates of unemployment above 80%” (Center for Native American Youth 2014).

The organization ‘National Relief Charities’ explains that major health issues among the population are due to poverty, reporting “Life expectancy for American Indians has improved yet still trails that of other Americans by a few years. American Indians have a diabetes epidemic — the highest in the U.S. The tuberculosis rate for American Indians is 7 times higher. Cancer-related disparities for American Indians are higher than for any minority group in the U.S., mainly due to poverty and lack of access.”9 (NRC 2009). Even the office of the United States President has weighed in on the effects of poverty in Indian Country, stating, “…Native children and youth grapple with a number of extraordinary challenges that stem from severe poverty. Schools that serve them are often not equipped to address these complex needs—mental health, nutrition, wellness, substance abuse, family life issues, exposure to bullying and violence, housing shortages, and other critical needs. (Executive Office of the President 2014, 20)

The Department of Justice agreed, reporting, “Today, a vast majority of American Indian and Alaska Native children live in communities with alarmingly high rates of poverty, homelessness, drug abuse, alcoholism, suicide, and victimization,” an advisory committee created by former Attorney General Eric Holder to study violence against AI/AN children said in its November 2014 final report” and “’Domestic violence, sexual assault, and child abuse are widespread,’ the co-chairs of the committee said in the report’s cover letter. ‘Continual exposure to violence has a devastating impact on child development and can have a lasting impact on basic cognitive, emotional, and neurological functions. We cannot stand by and watch these children—who are the future of American Indian and Alaska Native communities—destroyed by relentless violence and trauma’” (Flatten 2015).

That same year, another organization reported, “One-quarter of Indian children live in poverty…” (Horwitz 2014) This is much less than the Center for Native American Youth had reported. Further, one could see that percentage as a glass ¾ full – in that the majority of children of heritage do not live in poverty, and could reflect the reality that most children who are counted in that 2.1 million do not live in Indian Country – where the federal government has confirmed extreme poverty is affecting a possible 640,000 reservation children.

But inexplicably, despite the serious, grim reports by the office of President Obama, DOJ, and others concerning the appalling effects of poverty on these children, when tribal leaders and their supporters are defending ICWA and the quality of life in Indian Country, poverty becomes a non-issue. David Simmons, the government affairs director for the National Indian Child Welfare Association, said “it is unfair to use white, middle-class standards to judge Indian parents. Poverty and crime are rampant in many areas on and off Indian land, but that does not mean individual families in those areas would not make good parents” (Flatten 2015).

Documented levels of violence

He is absolutely correct. Poverty does not equate bad parenting, nor does it cause all the social ails it is accused of. Money is not the sole measure of productivity or success, nor is it essential to happiness. Many low-income families thrive, leading loving, productive and content lives. The more likely source of despair within Indian Country is not poverty, but crime, alcoholism, and the sexual abuse and violence faced by many children in Indian Country.

Reports dating back years cite the high rate of violence against children in Indian Country. According to a 1999 report by the Department of Health and Human Services, “AI/AN children make up 2.5% of all confirmed maltreatment cases nationally (highest incidence ratio of any racial group on available data nationwide- DHHS, 1999). NICWA admitted the high number of deaths, stating, “Neglect endangers AI/AN children 4 times more often than physical abuse and results in numerous child fatalities (NICWA, 1999), and the Department of Justice said, “There is one substantiated report of child victim of abuse or neglect for every 30 AI/AN children age 14 or younger” (Department of Justice, 1999).

The Center for Disease Control stated in 2004, “AI/AN women report more domestic violence than men or women from any other race” and “One study found AI/AN women were twice as likely to be abused (physically or sexually) by a partner than the average woman” (CDC 2004) (University of Oklahoma 2013, 16). This statistic for women has relevance for children, when at the ‘First Hearing of the Advisory Committee of the Attorney General’s Task Force on American Indian/Alaska Native Children Exposed to Violence,’ it was admitted that studies show “…batterers are more than four times more likely than other men to sexually abuse their children or step-children” (Hallie Bongar White 2014, 3). According to Lonna Hunter, Project Coordinator for the Council on Crime and Justice, “Co-occurrence is looking at the issue of maltreatment, but it’s also connecting this to the rate of child sexual abuse. The rate of child sexual abuse by a batterer is four to six times higher than a non-batterer. So, those dynamics of child sexual abuse occur largely when there is domestic violence present in those families.

When we look at the high rate of child sexual abuse in Indian Country and violence against Native women, it suggests that the rates could be even higher when considering the correlation to under reporting” and “This is echoed in the testimony by Elsie Boudreau, a Yup’ik survivor and child advocate from Alaska. Boudreau says that in 2010, 40 percent of children seen at Child Advocacy Centers for child sexual abuse were Alaska Native, even though we only represent 15 percent of the entire population in the state of Alaska. That is just strictly unacceptable” (Hallie Bongar White 2014, 27-28)

Ms. Hunter also said, “I traveled to Rosebud with the Tribal Law and Policy Institute to look at the co-occurrence of domestic violence and child maltreatment to do a site visit there and what I understood from interviewing child welfare workers, domestic violence advocates, survivors, and law enforcement, was that every child had witnessed violence or it was believed that every child had witnessed violence on the Rosebud Reservation” and “There were 25,000 calls to law enforcement in one year and there were 25,000 folks who live in Rosebud, and at least two children a day were victims of crime. That is astronomical. That is off of the charts compared to the co-occurrence of child maltreatment and domestic violence in the mainstream” (Hallie Bongar White 2014, 26).

Darla Thiele, Director of a diversionary project within the Spirit Lake Juvenile Court System, stated, “We have many youth on our reservation who have stories to tell. We have young ladies who on weekends are at home taking turns with their siblings holding the door shut while the party is going on in the living room. And they take turns holding the door shut to make nobody comes in to bother any of the siblings. (Hallie Bongar White 2014, 55)

Thomas Sullivan, former Regional Administrator of the Administration of Children and Families in Denver, stated in his 12th Mandated Report concerning the Spirit Lake Reservation to the ACF office in DC, February 2013, “In these 8 months I have filed detailed reports concerning all of the following:

• The almost 40 children returned to on-reservation placements in abusive homes, many headed by known sex offenders, at the direction of the Tribal Chair. These children remain in the full time care and custody of sexual predators available to be raped on a daily basis. Since I filed my first report noting this situation, nothing has been done by any of you to remove these children to safe placements.
• The 45 children who were placed, at the direction of Tribal Social Services (TSS), BIA social workers, BIA supervised TSS social workers and the BIA funded Tribal Court, in homes where parents were addicted to drugs and/or where they had been credibly accused of abuse or neglect. Since I filed my first report noting these placements, nothing has been done to remove these children to safe placements. I trust the Tribal Court, with the recent resignation of a judge who failed a drug test, will begin to be responsive to the children whose placements they oversee.
• The 25 cases of children most of whom were removed from physically and sexually abusive homes based on confirmed reports of abuse as well as some who still remain in those homes. Neither the BIA nor the FBI have taken any action to investigate or charge the adults in these homes for their criminally abusive acts. Many, of the adults in these homes are related to, or are close associates of, the Tribal Chair or other Council members.

“Since I filed my first report detailing these failures to investigate, charge, indict, prosecute those adults, my sources and I have observed nothing to suggest this has changed. Those adults remain protected by the law enforcement which by its inaction is encouraging the predators to keep on hunting for and raping children at Spirit Lake. (Sullivan 2013)

Despite Mr. Sullivan having been fired by his DC superiors in May, 2016, for continuing to report the abuse, there doesn’t appear to be any disagreement among reporters that abuse is rampant. “Indian children suffer the second-highest rate of abuse or neglect of any ethnic group, behind African Americans, according to the U.S. Centers for Disease Control and Prevention” and “Indians also have the second-highest rate of homicide deaths and infant mortality, behind African Americans” (Flatten 2015).

In 2014, the CNAY reported, “Violence, including intentional injuries, homicide and suicide, account for 75% of deaths for AI/AN youth age 12 to 20” (SAMHSA). (Center for Native American Youth 2014). “Types of crimes that Native Americans are likely to be victimized by include: murder, assault, drug trafficking, human trafficking, and gang violence” (Tighe, 2014).(Hyland 2014, 4). “Adolescent AI/ANs have death rates 2 to 5 times the rate of whites in the same age group (SAMHSA), resulting from higher levels of suicide and a variety of risky behaviors” (Center for Native American Youth 2014). “Recent research shows that while the US child mortality rate for children ages 1 to 14 has decreased by 9% since 2000, it has increased by 15% among AI/AN children (National Court Appointed Special Advocate Association)” and “Alcoholism mortality rates are 514% higher than the general population” (Center for Native American Youth 2014).

NICWA appears somewhat confused in its rendering of the deaths of the children. While on the one hand reporting in 2014 that “Available data collected by state child welfare systems shows that AI/AN child fatalities occur at the same rate as the national average, with 2.2 AI/AN child fatalities reported per 100,000 AI/AN children in the population (Department of Health and Human Services [DHHS], 2013)” (NICWA 2015). NICWA also stated that same year that “unique to AI/AN families are incredibly high rates of deaths by accidental injury. These types of deaths, which include car and pedestrian accidents, firearm accidents, drowning, fires, and suicide/homicide, account for 75% of all deaths of AI/AN children (Centers for Disease Control [CDC], 2003, p.1). Combined, the rate of death due to injury for AI/AN children is twice the national rate at 48.4 versus 24.0 per 100,000 (CDC, 2003, p. 2). Compared to Caucasian and African American/Black children, AI/AN children have the highest injury-death rates for motor vehicle crashes and pedestrian events as well as suicides (CDC, 2003, p. 3)” (NICWA 2015). While they were using two different sources – which were ten years apart – for their data, they reported on all of it in the same year: 2015.

Having said all that, NICWA then discredits its own statement that most fatalities are due to accident rather than abuse or neglect, by saying “These figures must be considered alongside the data describing child fatalities and incidence of child maltreatment in AI/AN families. This data is in line with data showing that AI/AN families are more likely to have child welfare involvement due to neglect and suggests a unique risk factor specific to AI/AN child fatalities. Given the multitude of potential responders, differences in how entities may determine child fatalities, and limited framework in Indian Country for investigating child fatalities, questions arise as to whether some of these accidents may be related to child neglect as opposed to tragic accidents. It is with these realities in mind that solutions to identify, respond to, and prevent child abuse and neglect fatalities in AI/AN families and communities must be crafted. (NICWA 2015, 5)

Further, NICWA then asserts the statistics are likely underreported, saying, “According to this data, 11 AI/AN children died in 2012 due to child abuse and neglect (DHHS, 2013). This data reflects only those child fatalities that have been reported to state authorities. However, because incidents of child maltreatment that occur under a tribe’s exclusive jurisdiction and where tribal services are provided are not necessarily reported to the state and included in national data systems, this number is likely a slight underestimate (Earl, 2001, p. 8)” (NICWA 2015).

Lastly, some of NICWA’s testimony appears simply confused: “National statistics show that of the U.S. children who die due to maltreatment, 69.9% suffered from neglect and 44.3% suffered from physical abuse, either exclusively or in combination with another maltreatment type (DHHS, 2013). Thus, a much higher proportion of children who die due to child abuse and neglect have been subjected to physical abuse than children involved in the child welfare system generally (44.3% versus 18.3%). This data suggests that AI/AN children involved in the child welfare system who face higher rates of neglect than physical abuse may be at slightly less risk of death than their counterparts. (NICWA 2015)

Other reporters can be just as confusing. Lonna Hunter, Project Coordinator for the Council on Crime and Justice, stated in hearing testimony, “The co-occurrence between domestic violence and child maltreatment…occurs between 50 and 70 percent. So 50 percent to 70 percent of children who are in homes where they’re witnessing domestic violence, that is the rate of child maltreatment that they are experiencing” and “…we do not know those very specific statistics for Indian Country. The rate of violence against Indian and Alaska Native women by an intimate partner is upwards to 30 to 40 percent. And so, considering the rate of violence against American Indian/Alaska Native women, the high co-occurrence rate suggests that it’s critical that we study or at least look at the research on this issue in Indian Country” (Hallie Bongar White 2014, 25).

Nevertheless Ms. Hunter again confirms the lack of reliable data as well as the issue of underreporting: “Data from the Wind River Reservation estimates that at least 66 percent of families have history of domestic violence and at least 20 percent have been sexually abused and those are low numbers. We have to remember that under reporting is largely in the population of Alaska Natives/American Indian families because there is just basically no research.” Ms. Hunter stated more, “The issue of co-occurrence of domestic violence and child maltreatment has been studied in mainstream since the late probably ’80s into the early ’90s; however, in Indian Country, we are only beginning to realize the magnitude of this issue. I would have liked to present the statistics on the studies of the co-occurrence in Indian Country for children witnessing domestic violence; however, there is little to no research on this issue.”

Studies indicate that witnessing violence may be as harmful as suffering physical abuse oneself.
Despite these undisputed statistics, tribal leaders and their apologists argue Indian Country is the best and only place of healing and health for children of heritage, even arguing children who leave Indian Country are afflicted with a syndrome called “split-feather,” which could place them “at great risk of long-term psychological damage as an adult” (Locust 1998).

How do physically and sexually abused children respond when told their life of trauma is not only best for them, but that there are no alternatives?

Documented levels of suicide

“Subjects with a history of any type of maltreatment were 3 x more likely to become depressed or suicidal than those with normal treatment history” (University of Oklahoma 2013, 15). “According to the Youth Risk Behavior Survey, 16 percent of students at Bureau of Indian Affairs schools in 2001 reported having attempted suicide in the preceding 12 months” (Center for Native American Youth 2011). “Young Native Americans taking their own lives — more than three times the national average, and up to 10 times the average on some reservations” (Horwitz 2014). The chorus concerning the epidemic of suicides goes continues: “Suicide is the 2nd leading cause of death – 2.5 times the national rate – for AI/AN youth in the 15 to 24 age group (SAMHSA). In the US, between 1 in 9 and 1 in 5 AI/AN youth report attempting suicide each year (Suicide Prevention Resource Center)” (Center for Native American Youth 2014). “Indians have the highest child suicide rate in the nation, according to the CDC. The suicide rate for Indians 15-34 years old is 2.5 times higher than the national average. Suicide is the second-leading cause of death for that age group” (Flatten 2015)

The office of the President reiterated the same information: “Suicide is the second leading cause of death—2.5 times the national rate—for Native youth in the 15 to 24 year old age group” (Executive Office of the President 2014, 5), while NICWA, that same year, shared a different rate, “Native teens experience the highest rates of suicide of any population in the U.S.—at least 3.5 times higher than the national average.11 (NICWA, SAMHSA 2014)

Some areas have declared states of emergency. “Suicide among Native American youth is 9 to 19 times as frequent as among other youths, and rising. From Arizona to Alaska, tribes are declaring states of emergency and setting up crisis-intervention teams” (Woodward 2012). Two examples this year; “The Yurok Tribe has declared a state of emergency after seven young tribal members took their own lives over an 18-month span” (Greenson 2016). “Since September, 101 people in the Attawapiskat First Nation, a remote aboriginal community with about 2,000 residents, have attempted suicide” (Austen 2016).

“It feels like wartime,” said Diane Garreau, a child-welfare official on the Cheyenne River Sioux Reservation, in South Dakota. “I’ll see one of our youngsters one day, then find out a couple of days later she’s gone. Our children are self-destructing.” So dire is the alarm that of 23 grants the U.S. federal government awarded nationally to prevent youth suicides in September, 10 went to Native American tribes or organizations, with most of them receiving nearly $500,000 per year for three years” … “Our kids hurt so much, they have to shut down the pain,” said Garreau, who is Lakota. “Many have decided they won’t live that long anyway, which in their minds excuses self-destructive behavior, like drinking—or suicide” (Woodward 2012).

“…After a cluster of suicides in 2001, the White Mountain Apache Tribe wanted to develop a prevention program. It mandated reporting of all suicides and attempts on their Arizona reservation, discovering that between 2001 and 2006, their youth ended their lives at 13 times the national rate.” …” Because suicide is so common in some Native communities, it’s become an acceptable solution for times when burdens build up, said Alex Crosby, medical epidemiologist with the CDC’s injury-prevention center:” “…In some communities, suicide has become so ordinary that boys in particular may dare each other to try it, said Ira Vandever, a Ramah Navajo chef in western New Mexico. (Woodward 2012)

Further, “Children from violent homes learn it’s ok to hurt the ones you care about: whoever has the most power gets to win and that abuse and violence are acceptable techniques for use in conflict resolution. The effects of being raised in these settings may be visible right away or may lay dormant and resurface later in life manifesting itself as depression, eating disorders, inability to develop close-trusting relationships, addictive behaviors and controlling and/or violent behavior. Many children, adolescents and young adults who were witness to or subjected to abuse in their homes attempted suicide. (Hallie Bongar White 2014)

Despite all the evidence to the contrary, it has been said, “In Indian Country children are considered sacred beings—gifts from the Creator and carriers of the tribe’s future” (NICWA 2015, 2)

Documented levels of denial

While abuse and neglect are the most likely cause of the engulfing despair, most reporters of the abuse blame ‘historical trauma’ and the federal and state government for what is happening to the children. NICWA maintains there are at least four “distinct forms of trauma” that have been identified in Indian Country, “which can be experienced in a single event, as a prolonged experience, through interpersonal violence, from a historical event, or via a personal event that occurs over time through several generations” (NICWA, SAMHSA 2014).

• Cultural Trauma
• Historical Trauma
• Intergenerational Trauma
• Current Trauma

According to the CNAY, “As a result of historical trauma, chronically underfunded federal programs, and broken promises on the part of the US government, American Indians and Alaska Natives experience many health, educational and economic disparities compared to the general population. (Center for Native American Youth 2011) (2014).

“We need vital resources that allow us to be at the forefront, special demonstration funding that addresses the co-occurrence of domestic violence and child maltreatment,” said Ms. Hunter. Requests for money are repeated in most if not all hearing testimony, along with the references to historical trauma. (Hallie Bongar White 2014, 35). Lonna Hunter stated in testimony to the Justice Department, “The issues of domestic violence, child sexual abuse, and child maltreatment must be addressed through understanding of the complexity of historical and intergenerational trauma” and “This is about a political relationship to the United States government. And when we see these astronomical numbers, we understand the full extent of the historical trauma and realize the full frontal crisis we find ourselves in Indian Country with our women and children. It is imperative to understand the context of historical colonization, battering, dominance, and oppression in our villages, communities, and tribal nations in Indian Country. It is imperative because it removes the lens of “victim blaming (Hallie Bongar White 2014, 30)

The media parrots this line of reason as well, “Native youngsters are particularly affected by community-wide grief stemming from the loss of land, language and more, researchers reported in 2011. As many as 20 percent of adolescents said they thought daily about certain sorrows—even more frequently than adults in some cases… (Woodward 2012)

However, according to the Indian Health Service TeleBehavior Health Center at the University of Oklahoma, “Factors that Affect Children’s Responses to Violence” include a child’s immediacy to the violence; age of child at time of exposure; availability of adults to emotionally protect the child; the child’s disposition; and the severity and continual nature of the violence” (University of Oklahoma 2013, 17). Historical trauma isn’t included in the list.

The reality, of course, is that all people groups throughout history have experienced severe trauma. Some have passed that trauma on to the next generation, others have not. Nevertheless, the premise of inevitability that all persons of Native American heritage suffer from historical, cultural and intergenerational trauma has been disproved by the much higher percentage of persons of Native American heritage who are not experiencing violence, addiction, health, educational or economic issues. Many of those who appear not to have not been experiencing trauma – (but not all) – live outside of Indian Country and have never been connected to the reservation system.

Documented levels of Alcoholism

The more likely reasons for the high incidence of violence, child sexual abuse, and child maltreatment within Indian Country revolves around the high incidence of drug and alcohol abuse found on many reservations, which has been well documented in numerous studies over the years. A 1999 survey conducted by the National Center on Addiction and Substance Abuse (NCASA), found “76% of social welfare professionals cited substance abuse as one of the top three causes for the rise of child abuse and neglect since 1986” (Roe Bubar 2007, 13 (9)). The U.S. Department of Health and Human Services found “…meth-addicted parents (fathers more frequently than mothers) are more likely to abuse their children when using the drug, while neglecting them as the high wears off (Hogan, Myers & Elswick, 2006; [HHS], 2003). As noted by NCASA (1999), “the powerful lure of this addiction competes with parents’ bonds to their children, and can diminish their ability to meet the demands of child welfare officials and to regain their children despite an abiding love for them” (Roe Bubar 2007, 17).

In 2003 it was noted, “Mortality rate associated with alcoholism is nearly four times that of other races. Alcohol contributes to four of the top 10 leading causes of death for American Indians and Alaska Natives, including accidents, chronic liver disease and cirrhosis, suicides, and homicides. The majority of accidents, including motor vehicle accidents, are alcohol related” (NW Frontier ATTC 2003).

In 2004, “tribal service providers and law enforcement agencies began reporting that parents were selling their furniture, personal belongings, family heirlooms and regalia, cars, homes, and in some instances prostituting their children in order to obtain cash to continue their addiction to methamphetamines (meth). Criminal Justice Act grantees also were reporting dramatic increases in interpersonal violence, crime, and death, in which meth was a contributing factor (D. Payne, personal communication, April 10, 2006). However, Indian country lacks both a macro and micro study of child abuse and meth use. Furthermore, a systematic examination into the impact of the meth crisis on emergency services, social services, law enforcement, and schools has not taken place on a tribal basis, much less on a pan-tribal level. (Roe Bubar 2007, 7) Note: this list of methods to raise money for drugs included prostituting one’s own children, and again mentions the lack of solid data.

The Substance Abuse and Mental Health Services Administration (SAMHSA) estimated in 2005 that “methamphetamine use had grown to 1.7 percent in the Native population” (McSwain, 2006). “According to Trends in Indian Health, produced by the Indian Health Service in 2000-2001, American Indian and Alaska Native populations have seen a 164% increase in the number of drug-related deaths from 3.9% in 1979-1981 to 10.3% 1998. The North Dakota Drug Threat Assessment of 2002 concluded that meth use and distribution was a problem in all reservations within the state, including Turtle Mountain, Standing Rock Nation, Fort Berthold, Spirit Lake Nation, and Lake Traverse (U.S. National Drug Intelligence Center [NDIC], 2002). “It is believed that most of these reservations have been targeted by Mexican drug traffickers who bring the drugs in wholesale from California or Mexico and then use Native distributors for both on and off reservation trafficking (NDIC, 2002)” (Roe Bubar 2007).

“According to newspaper accounts…U.S. and tribal law enforcement agencies have witnessed a large increase in violent crimes stemming from meth use. Furthermore, there have been reports of tribal elders and family members being involved with meth distribution. … According to media reports coming out of the Wind River reservation in Wyoming, the tribal community had been targeted by Mexican drug cartels in an attempt to create a market for meth that dwarfs the demand for alcohol and marijuana. As a result, …social services agencies have seen a large increase in child neglect cases. The addition of meth-exposed children to an already strained network of social services in tribal communities almost guarantees additional complications in educational, social, and medical services on the reservation. Requests through the Indian Health Service (IHS) for drug rehabilitation services for meth addicts increased from 137 in 1997 to 4,946 in 2004. … (Doney, 2006; U.S. Commission on Civil Rights [USCCR], 2003). (Roe Bubar 2007, 15-17)

“Professionals working in these tribal communities report increases in the incidence of child abuse and neglect, domestic violence, and sexual assault as a result of meth. They also expressed an awareness of increases in child abuse allegations and out-of-home placements that involved a meth-related investigation. Furthermore, these professionals believe that meth involvement increases the difficulty of family reunification. In addition, there are serious concerns regarding the impact of methamphetamines on children, including attempted or completed suicides, meth-impacted births, and exposure to chemicals within the home environment. Many of the perceptions provided by tribal professionals in this survey are supported by recent data gathered by the Bureau of Indian Affairs and Office of Justice Services from 96 Indian country law enforcement agencies that suggests meth is the greatest threat in their communities. These law enforcement agencies also identified increases in domestic violence, assaults, burglaries, and child abuse and neglect cases with the increased use of meth” (Roe Bubar 2007, 10).

The children are also mimicking their parents. In an early study, “Wallace and Bachman (1991) found that almost half of Native American youth under the age of 17 drank alcohol or smoked marijuana, with a higher substance abuse rate for boys than for girls” (Roe Bubar 2007). “16% of AI/AN youth ages 12 and older report substance dependence or abuse” (NICWA, SAMHSA 2014).

“Native youth also face substance abuse problems and some have co-occurring mental and substance use disorders. In 2013, among persons aged 12 or older, the rate of substance dependence or abuse was higher among American Indians/Alaska Natives than any other population group. That same year, an estimated 38.7 percent of Native adolescents aged 12 to 17 years had a lifetime prevalence of illicit drug use. Compared with the national average for adolescents aged 12 to 17, Native adolescents had the highest rates of lifetime tobacco product use, marijuana use, nonmedical use of pain relievers, and nonmedical use of prescription-type psychotherapeutics. From 2003-2011, American Indian/Alaska Native were more likely to need alcohol or illicit drug use treatment than persons of other groups by age, gender, poverty level, and rural/urban residence. In 2012, almost 69 percent of Native youth ages 15 to 24 who were admitted to a substance abuse treatment facility reported alcohol as a substance of abuse compared to 45 percent for non-AI/AN admissions. Among other issues, underage drinking increases the risk of suicide and homicide, physical and sexual assault, using and misusing other drugs, and is a risk factor for heavy drinking later in life. (Executive Office of the President 2014, 25-26)

Further, “Fetal alcohol spectrum disorders among AI/AN population indicate some of the highest rates” (University of Oklahoma 2013, 14). It has been suggested that the biggest ‘elephant in the room’ in reference to Indian Country is the reality that a high percentage of those remaining on the reservation suffer from alcohol related birth defects, which has resulted in progressive generations of fetal alcohol adults raising fetal alcohol children.

Documented levels of mental and physiological health issues

Others have pointed to the long-term effects of repeated exposure to violence. “… No matter what you do, if that child can’t be at that basic level feeling safe, feeling secure, being fed, that kind of a thing, how are they going to be at a higher level? (Honolulu, Hawaii) (NIEA 2006, 22-23)

“Trauma at a young age often leads to higher rates of behavioral health disorders in adolescence. [While] research shows there is little comprehensive data on rates of Posttraumatic Stress Disorder for AI/AN youth… a study of Native American sixth graders from one reservation found that 75% had clinically significant levels of PTSD” and “Researchers have reported a 14% prevalence rate of Major Depressive Disorder among AI/AN adolescents” (NICWA, SAMHSA 2014). “Indian children experience post-traumatic stress disorder at the same rate as veterans returning from Iraq and Afghanistan, and triple the rate of the general population” (Flatten 2015).

“I would venture to say over 80 percent of our children are traumatized at an early age; and so, therefore, their ability to learn and comprehend is affected very severely. How do we link that? How do we link the early childhood trauma? Where is the research and where do we find the research dollars to make that link; and, in that, what are the methods that can help our children transcend that and move into a place where they can get beyond that and they’re able to learn? (Green Bay, WI) (NIEA 2006, 23)

Additional funds to prove the connection between the trauma children experience on many reservations and their subsequent inability to learn are not necessary. A multitude of studies have already proven the links. It is time now to act. “This whole No Child Left Behind or other education endeavors deals with academics and learning; but, as long as we don’t address the other issue of hurt children and hurt children cannot learn — we all know that, don’t we? Hurt children cannot comprehend. We know that. And, most importantly, children in unhealthy homes, it affects their attendance and it does contribute to their dropout. Early childhood trauma is also the precursor to long-term alcohol and substance abuse. The research is connecting all that up. (Green Bay, WI) (NIEA 2006, 23)

Indian children respond to the impact of violence exactly as children from every heritage do. According to the HIS center at the University of Oklahoma, “The brains of traumatized children develop as if the entire world is chaotic, unpredictable, violent, frightening, and devoid of nurturance…Bruce Perry, M.D., Ph.D” (University of Oklahoma 2013, 23).
As a society, we need to stop being afraid and do what needs to be done to factually help affected children and stop the cycle.

“The combination of repeated childhood trauma and the absence of parental nurture, support and protection can result in the development of multiple psychiatric and neuropsychiatric disorders. … four categories of symptoms:

(1) trauma-related neurological symptoms,
(2) trauma-related psychological symptoms,
(3) developmental difficulties brought on by poor parenting, and
(4) other associated difficulties.

“Each of these categories or clusters of symptoms cause children considerable emotional distress and impair their ability to function, and the distress and dysfunction are even more severe when they are combined. Although these four sets of difficulties are hard to “cure,” appropriate mental health treatment can act as a buffer against them and their effects, especially when such treatment is initiated during childhood (Cicchetti and Toth, 1995; Toth and Cicchetti, 1993). In the absence of treatment, however, trauma-related difficulties and their effects tend to persist into adolescence and adulthood and become difficult to reverse (Perry et al., 1995; Schore, 2001). (Richard G. Dudley 2015, 4-5)

“Studies have shown that, when children are repeatedly exposed to trauma, the amygdala — the area of the brain known to activate the physiological stress response — overdevelops. This overdevelopment increases the fear and anxiety these children experience and causes them to be hyperresponsive to frightening situations in both their physiology and their observable behavior (Pollak, 2008; Shin, Rauch and Pitman, 2006). At the same time, the development of the hippocampus — the area of the brain known to turn off the stress response — is inhibited, decreasing its capacity to control the response (Bremner et al., 2003) … Trauma-related neurological and psychological difficulties interact so as to exacerbate each other” (Richard G. Dudley 2015, 5-6).

“…it is estimated that 35 percent of children exposed to domestic violence will develop trauma-related difficulties (Moretti et al., 2006). …Similarly, it is estimated that between 42 percent and 90 percent of child victims of sexual abuse will develop trauma-related difficulties (De Bellis, Spratt and Hooper, 2011). …statistics related to both these issues are thought to be underestimates (Leventhal, 1998; Wilt and Olson, 1996). It is therefore likely that the actual prevalence of PTSD stemming from both childhood sexual abuse and exposure to domestic violence is greater than stated above. More difficult to estimate is the number of children repeatedly exposed to or even directly threatened by various forms of neighborhood violence” (Richard G. Dudley 2015, 9).

Some believe these issues result “in our kids not knowing who they are and emulating other races by trying to be people that they are not. And they’re doing this because they lack a basic knowledge of who they are and where they come from. And we, as Dacotah people, we are spiritual people. We have a belief in Wakan Tanka, and we know that prayer is a daily part of life” (Hallie Bongar White 2014, 56).

Application of the Indian Child Welfare Act

All of these statistics have been known, thoroughly documented and reported by supporters of the Indian Child Welfare Act for many years. Yet, while admitting there aren’t enough safe, healthy foster homes on all reservations, many of these same reporters vehemently oppose the use of foster homes outside of Indian Country. “About 2 percent of US children are American Indian/Alaska Native, but AI/ANs represent 8.4 percent of the children in foster care. (NICWA, & Kids Are Waiting, 2007)” (Center for Native American Youth 2011). “The National Indian Child Welfare Association (NICWA) reports that AI/AN children are overrepresented in foster care – at more than 2.1 times the general population – and 2 to 4 times the expected level are awaiting adoption” (Center for Native American Youth 2014).

Further, “[n]on-binding guidelines published by the U.S. Bureau of Indian Affairs in February, 2015, stated that courts should not consider the best interests of the child in determining foster care or adoptive placements. Placement in an Indian home is presumed to be in the child’s best interests” (Flatten 2015). In June 2016, the federal government took it a step further and published the guidelines in the federal register as now mandated rules for all courts. Every child in the nation who presents to a court in need of care now must be vetted for tribal heritage, and if heritage is found, the relevant tribal government must be notified and given the option to intervene and take over jurisdiction of the child. These new rules have been written to prevent children and families from ducking the ICWA and avoiding tribal jurisdiction. “The law forbids judges from blocking placement in an Indian home based on poverty, substance abuse, or “nonconforming social behavior” in a particularly Indian community or family, according to the BIA guidelines. That can force children with even a slight Indian heritage into environments where poverty, crime, abuse, and suicides are rampant” (Flatten 2015).

One organization even called it a “positive’ event when children are unable to find a permanent, loving home, with stable adults they can call ‘Mom’ and ‘Dad.’ From the ICCTC: “AI/AN children currently appear less likely to be adopted compared to White children. This positive finding, reported by CWLA (1999), may be due to the passage of the Indian Child Welfare Act of 1978 (ICWA)” (Indian Country Child Trauma Center 2005).

“The ICWA was enacted to stem the outflow of Indian children from their tribal communities and to statutorily recognize tribal authority over child placement decisions. The Act is based on the fundamental assumption that it is in the Indian child’s best interest that its relationship to the tribe be protected.” The ICWA Commission’s hearings, which were held on the reservations throughout the State and in Sioux Falls and Rapid City, were ‘the most in-depth assessment of ICWA compliance ever undertaken in South Dakota.’ Testimony from all of the Indian communities reported a high rate of removal of Indian children from their families on the reservations. The primary reasons for the removal of Indian children were two-fold: a high rate of alcohol and drug abuse and …abuse and neglect. In either situation, the predominant reason for the removal was children being at risk of abuse and neglect and could not be maintained safely in their homes. Removing a child from his or her home requires placement in foster care or a temporary custody arrangement with a member of the family. However, as the study revealed, when placement with extended family is not an option, neither the State nor the tribes have a sufficient number of qualified foster homes available to place Indian children in what often becomes a long-term custody arrangement”(Kunesh 2007, 28).

Many tribal entities also claim only tribal governments and tribal organizations can help children who have any amount of tribal heritage. Says a representative of the National Indian Child Welfare Association, “To prevent child abuse and neglect in Indian Country and the senseless deaths that it sometimes produces, the Commission must turn to those who have the most knowledge of the needs of these children: national Indian child welfare experts, tribes, and AI/AN practitioners. These experts can best help the Commission understand challenges to AI/AN children’s safety and work with the Commission to formulate solutions that support healthy, safe children and families. (NICWA 2015, 2)

The argument is further buffered in most if not all hearings and testimony by the mention of treaties and land, although no treaty gives any tribal government the right of jurisdiction over the children of non-Indian families who are not connected to the reservation system, let alone parents and tribal members who have deliberately taken their families and left Indian Country.

“AI/AN nations have always had systems of government that addressed internal conflict and provided for the needs of their families. Historically, these systems were informal, unwritten, and based upon a holistic philosophy which sought to encourage a balanced way of life. These governing systems are acknowledged in the U.S. Constitution, hundreds of treaties, and some of the earliest Supreme Court cases. Over the course of time, a fundamental contract between AI/AN nations and the federal government has been created. AI/AN nations ceded millions of acres of land and enabled the U.S. to expand its territory, and in return, AI/AN nations were given a guarantee that their continued existence and inherent right to self-government will be protected. Unfortunately, for the vast majority of our history, this relationship was not honored by the federal government, which actively worked to extinguish tribal self-governance and in some cases tribal people” (NICWA 2015, 2)

“Sandy White Hawk, a woman of Sioux heritage who was adopted by a non-tribal family in the 1950s, voiced a commonly accepted belief when she said, “We know that the children who grow up outside of their culture suffer greatly… Non-native homes cannot give an adopted Indian child their culture” (Kaplan 2015).

The term ‘Split-feather syndrome’ came into parlance in the late 90’s with a pilot study under the direction of Carol Locust, a training director at the Native American Research and Training Center at the University of Arizona College of Medicine. According to Locust, “The pilot study conducted by this investigator indicated 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 1998).

Locust is said to have identified “unique factors of Indian children placed in non-Indian homes that created damaging effects in these children’s lives.” 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 1998 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 Native American adoptees – total – were interviewed. Further, 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).

Conclusion

The data is clear and agreed upon by reporters across the board. Emotional and physical dangers for children are much greater within Indian Country than they are without.

Some of the reports given by tribal entities and organizations have phrased the data to make it appear that these dangers are implicated on the basis of heritage. But many more children of Indian heritage live outside of Indian Country than live within, and many of these children and their families, while they may report elements of their heritage to the U.S. census, are not eligible for federal Indian benefits, do not participate or have any connection with Indian Country, and are not countable in the statistics gathered by Indian Health Services or other reporters of tribal health and welfare statistics. They do not use Indian Health Services or programs offered by tribal governments, are not available to be counted, and cannot be included in many of the studies concerning youth of Indian heritage.

The dangers being reported pertain much more to children within Indian Country, under the auspices of tribal governments, the federal Administration of Children and Families, the Bureau of Indian Affairs, and other federal ‘help’ agencies, than they do to children in the mainstream who are unconnected to Indian Country.

The documentation of children being physically abused, sexually abused, and even dying at an extremely high rate within Indian Country is solid and has been so for at least two decades. Despite many hearings, reports and billions of dollars, the situation appears to have only been getting worse. The theoretical implication of this data, which has been reported as true by tribal government entities and their supporters, is that children who are taken from homes known and proven to be safe, stable, and emotionally and physically healthy outside of Indian Country, and placed into a home within Indian Country, are more likely to be placed into situations less safe, stable, and emotionally and physically healthy than the home they have been taken from.

Further, these theoretical implications should be obvious to tribal and federal governments as well as organizations servicing Indian Country, as they are the ones reporting the data.
Therefore, children who fall under the jurisdiction of the Indian Child Welfare Act – meaning children who a tribal government has deemed to be members and who have been brought before a judge for a custody hearing, regardless if they and their families have been connected to Indian Country – are being consciously placed into dangerous living situations by tribal, state, and/or federal government officials who know – or should have known – the environment is dangerous to them both physically and emotionally.

Unfortunately, ICWA statistics – including how many children are affected by the ICWA every year, what percentage of those affected were taken from long term homes where they felt safe and loved – then placed into tribal foster homes, what percentage had never lived within Indian Country or been acquainted with the culture, and what the long-term emotional and physical health outcomes for the children have been – were not mentioned in any of the reports or studies examined in this review and don’t appear to exist.

Nevertheless, a concerned community does not wait for additional studies to act on an obvious, fully and immediately known danger. We don’t 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 their extended family or neighborhood casts doubt on tribal and federal government assertions that the best interest of the children is of paramount importance.

The real racism – is the attitude that the documented and immediate needs of certain children of a particular heritage can wait a few more years so as to not interfere with the desires and demands of political leadership. While claiming to be “raising the standard” for children of heritage by allowing them to stay in a documented dangerous environment, or to return to a dangerous family setting prematurely, or to take them from an environment known to be safe and deliberately place them in danger – standards have in fact been lowered to the point of cruel negligence. Many children of tribal heritage are, in fact, not being given protection equal to what other children are legally mandated to receive. Our federal government has reduced our children to the status of a mere “resource’ and chosen to please political leaders rather than save children’s lives.

“…there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe…”
—Indian Child Welfare Act of 1978

References

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Horwitz, Sara. “The hard lives – and high suicide rate – of Native American children on reservations.” National Security. March 9, 2014. https://www.washingtonpost.com/world/national-security/the-hard-lives–and-high-suicide-rate–of-native-american-children/2014/03/09/6e0ad9b2-9f03-11e3-b8d8-94577ff66b28_story.html (accessed July 27, 2016).
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November 1, 2016 No Responses »

Opposition to ICWA is extreme?

Mar 252016

While the vast majority of comments and feedback about the book, ‘Dying in Indian Country’ have been extremely supportive – (an untold number of Americans [both tribally enrolled and not] have experienced and felt the same things we have) – there are still a few out there repeating the same stuff thrown at us in the 1990’s.

Today, a woman claimed my husband and I were “extremists” when we became politically involved years ago.

According to Merriam-Webster dictionary, ‘extremism’ is “the belief in and support for ideas that are very far from what most people consider correct and reasonable.” Cambridge Dictionary defines it similarly as “someone who has beliefs that most people think are unreasonable and unacceptable.”

For those who have been paying attention to the situation of a 6-yr-old girl named Lexi . who was moved from her home due to the Indian Child Welfare Act this last week, it is clear most people in America feel what happened to her was both unreasonable and unacceptable. By the above definitions – it was the tribal ‘establishment’ that was extreme.

“Extremists” are groups of people trying to force their points of view and way of life onto others. Those who fight back are not the extremists. They are the defenders.

All parents have a right to defend their families – no matter what their heritage.

Extremists and racists – when it comes to federal Indian policy – are those who think they have a right to claim jurisdiction over the children and grandchildren of others simply due to heritage, and then attempt to vilify parents who stand up for themselves.

Roland and I first began speaking out against the ICWA in 1995 or so. We were never “extremists” – we were simply parents sticking up for ourselves. Others who agreed began contacting us because of the letters I wrote to the editor.

When the livelihoods of our friends and neighbors were threatened amidst other issues, we did what we could to support them as well, joining their groups when asked to. That’s not being an extremist, that’s being part of a community.

Tribal corruption also became an issue we spoke against. At the time, Roland’s tribal government had just been convicted in federal court for embezzlement and ballot box stuffing,

As time went on, more people who had been hurt by extremist’ (by definition) tribal governments and federal Indian policies – heard what we were saying and joined us. It’s as simple as that.

We learned more tribal members live off the reservation than on – many trying to raise their children away from Rez crime and corruption.

But then, that’s all in the book.

The end of this story has not yet been written. The next book will delve further into federal Indian policy and the rewards certain people in both tribal leadership and federal government get from it.

Remember – Lobbyist Jack Abramoff went to prison in 2006 for taking money from tribal governments and buying Congressional votes with it – but none of the people who gave him money went to jail, and neither did the people he gave money to.

It didn’t stop just because one man went to prison.

So – were we “extremists” for wanting to protect our children from the Indian Child Welfare Act (should anything have happened to us)?

Were we “extremists” for wanting to help all the families that contacted us as years went by – both tribal enrolled and not – who had children in circumstances like Lexi’s?

…Were we “extremists” for fighting the same kind of corruption most of America is painfully aware of and currently debating and fighting this campaign season?

Not by definition.

March 25, 2016 No Responses »

He died five hours after calling us –

Oct 242014

He died in a car wreck on Sept. 22, 2014. Just five hours earlier, he was talking to us on the phone, telling us he had tape recorded his meetings with BIA social services and tribal court because he finally wanted his story to be public.

Lavern “Bundy” Littlewind was a BIA policeman and Spirit Lake tribal member. He wanted people who don’t live on the reservation to understand why child abuse is endemic on so many reservations. Many Tribal social services don’t protect kids. They protect tribal sovereignty.

Jastin “Ian” Blue Coat

The latest: Toddler Jastin Blue Coat was murdered October 18, 2014, in Eagle Butte, SD. Because of his heritage, he wasn’t allowed protection.

After a series of child murders at Spirit Lake, our federal government – in the form of the BIA, FBI and U.S. Attorney Tim Purdon – was called in two years ago to oversee, improve care, and protect the kids. Federally funded programs such as Casey Family Services and ACF were also supposed to be improving care. But that money has been poured down the drain.

There is no serious intention to protect children if the only real solutions are perceived to threaten tribal sovereignty. Protect tribal sovereignty at all costs – even at the expense of children.

Power and money have corrupted nations from time immemorial.

In all our years of going to DC about this, Representative Kevin Cramer has been the only Congressman to take real action. This year, he pushed for an oversight hearing and called the BIA on the carpet. His office asked Bundy to testify at the June hearing as well, but Bundy was nervous, thinking tribal government might use his kids against him if he spoke up. That’s understandable – many have seen that happen.

The U.S. Government has set up a system that allows crime and corruption to occur without repercussion in Indian Country. We are very grateful to Rep. Cramer. It takes real courage to address something other Congressman have been afraid to touch. We need him to remain in office, pursuing protection for kids at Spirit Lake as well as across the country.

October 24, 2014 No Responses »