Lakota People's Law Project Video Response to Goldwater Institute Press Conference

The Lakota People's Law Project has made a video response to the press conference held by the Goldwater Institute to announce its class-action law suit against the Indian Child Welfare Act. 

The US Adoption Industry, the Indian Child Welfare Act, and Black American Infants Sent in Intercountry Adoption

The news of the multiple legal challenges to the Indian Child Welfare Act (ICWA) are beginning to percolate through to the consciousness of news reporting outlets. The reasons behind these attacks on the law are also starting to be queried. This report from Fusion.net  explains that these law suits are a backlash against the proposed binding ICWA regulations, noting that “These proposed regulations have angered opponents of the bill, including the lucrative adoption industry.” In other words, the news story points to those involved in adoption as being opposed to not only the idea of binding ICWA regulations but to the Act itself. The news story goes on to comment that “Since the regulations were proposed, multiple lawsuits have been filed around the country challenging ICWA…”

Just how “lucrative” is the adoption industry in the United States? And why would it care about the adoption of American Indian children? The demise of children available to adopt to the United States through intercountry adoption is well-known. These statisticsfrom the United States Bureau of Consular Affairs, Department of State,  demonstrate the dramatic fall that continues in the number of children received by the United States.  And yet, at the same time, there are children sent from the United States for intercountry adoption—with an estimate, given in this article  that “as many as 500 infants, most of whom are black, leave this country through outgoing adoption every year.”

At the same time the US adoption industry is apparently concerned about restrictions on the adoptions of American Indian children to non-Indians, there is relative silence about the numbers of black children leaving the US in intercountry adoption.  Why a strong reaction to the proposed regulations to ICWA and yet seemingly very little about sending black American children in intercountry adoption? 

More on Class Action Law Suit Against the Indian Child Welfare Act

More information on the lawsuit which has been filed by the Goldwater Institute, challenging the constitutionality of the Indian Child Welfare Act (ICWA) can be found at the Turtle Talk blog.The Turtle Talk blog comments that: “This is highly funded, highly professional media campaign.” The blog also provides a link to the complaint  filed to initiate the law suit.  

Paragraph 5 of the complaint sets out the aims of the lawsuit: “They seek a declaration by this Court that certain provisions of ICWA, and Guidelines issued by the Bureau of Indian Affairs (BIA), both facially and as applied, violate the United States Constitution. They also seek an injunction from this Court against the application of certain provisions of ICWA and the accompanying BIA Guidelines.”

A statement from  theNational Indian Child Welfare Association 

 remarks that “It is disappointing that during this era of unprecedented support for Native children and youth, there are still special interests intent on mobilizing their considerable resources to dismantle critical protections for children that Indian Country and our allies fought so hard to establish.”

Backlash Against Indian Child Welfare Act Gains

It would be naïve to think that the many gains towards a full and consistent implementation of the Indian Child Welfare Act (ICWA) would go without challenge. ICWA has faced hostility from its inception, and some state courts have been reluctant to fully abide by its binding provisions—thus, the creation of the so-called “existing Indian family exception”—a  judicially created exception that is counter to the plain language of ICWA—that allowed state courts to determine whether to apply the Act or not.

And so it is that a class-action law suit has been announced. The Goldwater Institute is filing a lawsuit planning to challenge ICWA as being a “race-based law that discriminates against American Indian and Alaskan Natives” according to  Native Newsline Online.

In a season of many unprecedented and long-overdue gains for ICWA, this backlash should not have been unexpected. 

Keeping Track of the Indian Child Welfare Act

It is by now a well-rehearsed comment on the Indian Child Welfare Act that it is poorly implemented and adhered to by states. This poor implementation and state adherence was at least in part responsible for the issuance of new ICWA Guidelines and a proposed binding rule earlier this year. Each of this is a notable event in its own right. The non-binding Guidelines have not been updated since 1979, and there has never been a binding rule in place for ICWA.

The Children’s Bureau, part of the Administration for Children and Families, announced on April 2, 2015, that it intended to issue a supplemental notice of proposed rulemaking that would, for the first time, collect information on ICWA as part of the federal child welfare data. The  intent to publish a supplemental notice  states that:

“we have determined that there is authority under the statute (section 479(c) of the Act) to collect ICWA-related data in AFCARS. Specifically, the statute permits broader data collection in order to assess the current state of adoption and foster care programs in general, as well as to develop future national policies concerning those programs.”

This is significant in providing a needed mechanism to provide federal oversight of state performance with respect to ICWA. To date, no further supplemental notice of proposed rule-making has been published—and without that, the details of what would be included on the ICWA data has not been stated. Nevertheless, this information from the Children’s Bureau is a much needed step in the right direction with respect to ensuring compliance with the Indian Child Welfare Act.

Children's Bureau Policy Now Recognizes Customary Adoption for Title IV-E Requirements

A great deal of attention has rightfully been focused so far this year on the changes occurring at the federal level on the implementation and interpretation of the Indian Child Welfare Act. There have been new (non-binding) guidelines issues, and for the first time, a proposed binding rule has been put forward. But these are not the only changes happening at the federal level that are note-worthy. Perhaps hidden because of the higher profile of the ICWA-related changes is a very significant change in the policy of the Children's Bureau.

The National Indian Child Welfare Association explains that

"On February 13, 2015, the Children’s Bureau issued a new policy clarifying that tribal use of customary adoption to modify, as oppose to terminate, parental rights will meet Title IV-E Foster Care and Adoption Assistance requirements. Previously, the Children’s Bureau interpreted Title IV-E requirements to mandate that tribes operating the Title IV-E program must have a tribal code provision that terminates parental rights to be in compliance with Title IV-E. Many of the tribes that operate the Title IV-E program use customary adoptions to honor tribal customs and remove the use of nonIndian practices that resulted in the separation of many AI/AN children from their extended families and tribes"

This is an important recognition, in practice, of American Indian views of adoption, which may differ from that of the typical Western "clean-break" approach that demands the complete legal severance of ties between the child and the parent. The federal policy recognition of the place that customary adoption has in the traditions of some American Indian tribes is a significant step in the acknowledgement and respect for these in the legal arena-- and no doubt will have an impact where it matters the most, in the lives of children and families.

The Children's Bureau policy can on the recognition of customary adoption can be found here at number 3.

The Heart of Everything that Is: Book Reviews

Reviewing a book--- writing a book review—can be a tricky business. Is the review supposed to glow uncritically, even effusively, about the book? Should it be critical—in an analytical, constructive sense? The former does not serve a real purpose. The latter can be difficult to find. But when a thoughtful, critically constructive review does appear, in itself it is worth a mention. And such a review is available at this link; original review at this link. 

That  article discusses the book, “The Heart of Everything that Is: The Untold Story of Red Cloud”, written by Bob Drury and Tom Clavin. The article, by Four Arrows,  takes issue with the “anti-Indian” narrative throughout the book. It offers several examples that are woven throughout the book, where the overall picture presented is one of American Indians as primitive --and viciously violent as an end in itself. The article also refers to this review  by Tim Giago, who is an Oglala Lakota.  Giago’s review provides an American Indian’s view of a book written about American Indians. And Giago has very little positive to say about this book, noting that fails to present an indigenous perspective on its subject matter. 

These two commentaries on the book are perhaps worth reading ahead of the book—and to be borne in mind when reading it. I have also read the book, at the same time I was viewing the National Museum of the American Indian “Nation to Nation:Treaties Between the United States and the American Indian Nations” exhibit.  The timeline of the book is covered within the exhibit, as are the treaties discussed in the book. An entirely different point of view and of relevant information is given at the exhibit. The difference between the narrative of the book and of the exhibit were jarring—underscoring the point made in the 2 reviews of the book that who is telling the “story” makes a world of difference in whose voice is heard, and how events, and indeed indigenous peoples, are presented. 

Truth and Reconciliation Commission of Canada

Forcible removal of children is recognised as a form of genocide in international law. This is part of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide http://www.hrweb.org/legal/genocide.htmlas well as more recently made part of the 2007 United Nations Declaration of the Rights of Indigenous Peoples, at Article 7(2) http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf. The international position on this practice is clear.

And so it is perhaps not surprising that Canada’s Truth and Reconciliation Commission http://www.trc.ca/websites/trcinstitution/index.php?p=3has concluded that the forced removal of generations of Aboriginal children  to residential schools is “cultural genocide.” http://www.trc.ca/websites/trcinstitution/File/2015/Exec_Summary_2015_06_25_web_o.pdfThe Summary of the Final Report of the Truth and Reconciliation Commission of Canada explains the concept of “cultural genocide”:

Cultural genocide is the destruction of those structures and practices that allow the group to continue as a group. States that engage in cultural genocide set out to destroy the political and social institutions of the targeted group. Land is seized, and populations are forcibly transferred and their movement is restricted. Languages are banned. Spiritual leaders are persecuted, spiritual practices are forbidden, and objects of spiritual value are confiscated and destroyed. And, most significantly to the issue at hand, families are disrupted to prevent the transmission of cultural values and identity from one generation to the next.

But what is the significance of this finding? The term “cultural genocide” itself occupies a nebulous space within international law, according to this news analysis of the Truth and Reconciliation Commission findings. http://www.cbc.ca/news/aboriginal/cultural-genocide-label-for-residential-schools-has-no-legal-implications-expert-says-1.3110826. The question of “where do we go from here?” is addressed in this video from the Truth and Reconciliation Commission website. http://www.trc.ca/websites/trcinstitution/index.php?p=3