“The Wisest Future Course”

Kansas — what is there? The temptingly easy answer is of course, tornadoes and dogs named Toto. Sky and prairie grass, cattle, Dodge City… but there is more. Just under a deceptive placid appearance, there is so much more, both good and bad, of relevance to the idea of culture and identity, and the way in which groups of people do and do not live together. The shadow of the case Brown v Topeka Board of Education –the United States Supreme Court case decision on the de-segregation of American schools --leaves an uncertain legacy. Is Kansas to be championed for its place in the civil rights movement or is it to be remembered as a place of modern-day apartheid, well within living memory? And how is this reconciled with the history of the state itself—Bleeding Kansas—brought into being a state that prohibited slavery and was the site of intense fighting between pro-slavery and anti-slavery citizens? ( a story well told in the novel by Jane Smiley, “The All-True Travels and Adventures of Lidie Newton”

Lucas’ post brings out an important point—the danger of manipulation of indigenous identity to suit the aims of settler culture. Much has been written on this, much more needs to be written. The question that Fiona raises in her post about who is indigenous raises the danger of identity manipulation to the fore. And Kansas itself was the site of a pernicious judicially created doctrine, “The Existing Indian Family Exception” that allowed judges to side-step the protections within the Indian Child Welfare Act—when the judge as sole arbiter of culture and identity decided if a child was “Indian enough” for the Indian Child Welfare Act to apply.* This is despite this doctrine being clearly in conflict with the plain language of the Act itself. Judicial resistance to an Act that gave great weight to a child’s indigenous identity and in the protection of this identity led to the application of the doctrine outside of the State of Kansas. Finally, a 2009 decision ( In the Matter of A.J.S.) from the Kansas Supreme Court over-ruled the use of the doctrine in Kansas cases, stating clearly, “we are persuaded that abandonment of the existing Indian family doctrine is the wisest future course.”
And not a moment too soon.

A full discussion of the Indian Child Welfare Act and the Existing Indian Family Exception can be found in the link to the decision In the Matter of A.J.S, above.

Written by Sarah Sargent.