US Supreme Court decision on tribal court jurisdiction over non-tribal member

On June 23, 2016, the US Supreme Court issued a ruling on the issue of whether tribal courts have jurisdiction over non-tribal members in civil tort claims.

The decision was split 4-4, finding in favour of the jurisdiction of the Mississippi Band of Choctaw Indians, in the decision Dollar General v Mississippi Band of Choctaw Indians.  In essence this deadlock upholds the decision of the lower court, which found in favour of tribal jurisdiction.

The judgment from the US Supreme Court itself does not shed much light on the reasoning behind the decisions on either side, simply stating that “The judgment is affirmed by an equally divided Court.” 

As one opinion analysis notes, the case centered on the issue  of “exactly constitutes enough consent”  from non-members for  tribal jurisdiction to apply.

This decision is yet another part of the complex and at times unclear federal law on American Indians. One commentator notes that: 

 “Because of the uniqueness of Indian law and as a result of its patchwork nature, Justices have been known in private conversation to express frustration with the vagaries of Indian law cases. More than two decades ago, a Justice who was speaking in private to a group of scholars observed that when it came to Indian law, “we just make it up as we go.””

Useful commentary on the decision can also be found here. 

Will this decision provide clarity on the contentious issue of tribal jurisdiction, or is this to be regarded as an instance of the Court side-stepping a difficult question? 

Proposed binding rule for ICWA data collection

There has been a further  important development regarding the Indian Child Welfare Act (ICWA) -- one which would require states to collect and submit data to the Administration for Families and Children on ICWA related matters.

There is a proposed binding rule that would require-- for the first time since the enactment of ICWA in 1978-- that data be collected by states on the Indian Child Welfare Act. While there is a complex and detailed data collection system on other aspects of foster care and adoption, there has been a conspicious absence on a requirement to collect information about ICWA. The lack of systemic data gathering and inconsistencies in available data were noted for instance in 2005 GAO report on how the Act affected children in the foster care and adoption system. This lack of information  as noted in the GAO report is cited in the proposed rule as detrimental in providing appropriate oversight for Indian children in the foster care system.

The proposed rule is currently open for public comment.

The Dakota Access pipeline continues to get attention in the media, as events continue to unfold about its possible construction. A state permit has been requested from  Iowa to begin construction on the pipeline.  According to this article, there was an application made for an expedited decision on the permit, but that that request was not successful. Instead, the decision about the permit will proceed in the usual fashion, which allows "public comments through March 25." Among other requirements to obtain the permit, the article says that "The terms and conditions issued by the board include Dakota Access must:

• Obtain and maintain a general liability insurance policy of at least $25 million

• Demonstrate and file the unconditional and irrevocable guarantees from its parent companies for remediation of damages from a leak or spill

• Make modifications to easement forms on properties utilizing eminent domain

• Continue to offer to purchase voluntary easements

• File a revised Agricultural Impact Mitigation Plan to include landowner notifications and the separation of all topsoil from affected areas

• File a winter construction plans

• File quarterly status reports"

Indian Country Today Media Network has a detailed article on the pipeline plans, which discusses the concerns raised by the Standing Rock Sioux Tribe. These concerns include the damage that would result from a pipeline leak: "If a leak were to occur, it would undoubtedly devastate the environment, people, resources and land of the Standing Rock nation. The quality of the water of the Missouri River is critical to the health and well-being of the tribe, both economically and culturally."

More Pipelines in the News: Dakota Access Pipeline

The issue of pipelines has not gone away, entirely, it would seem. And this is to do with a pipeline other than the controversial Keystone XL project. Now in the news is the proposed Dakota Access pipeline, which would run "through North Dakota, South Dakota, Iowa and Illinois." 

This proposed pipeline is being opposed by members of the Standing Rock Reservation. 
Tribal members cite concerns about the environmental hazards posed by the proposed pipeline  by putting water supplies at risk, as well as alleging that the  "company bypassed federal laws requiring direct discussion with the tribes." 

Approval for construction of the pipeline was secured in Iowa on March 11, 2016.  This is despite objections raised by Iowa land owners who would be affected by the pipeline construction. 

While the threat from the Keystone XL pipeline may have abated, the appetite for pipeline building does not seem to have been curbed, even with the current very depressed prices for oil and gas. 

Law suit over Treaty Terms

The implications over treaty terms and the boundaries of indigenous nations' lands is not something that is a relic from the past. It is something that continues to have a great deal of relevance in the present day, as this article about a law suit on the 1855 treaty between the US federal government and the Little Traverse Bay Band of Odowa Indians points out.  At issue includes jurisdiction over legal matters -- whether the jurisdiction is in tribal court or in the state legal system. The article notes "child welfare, grave protection, income tax laws, and jurisdiction within the reservation" are raised as areas of contention in the law suit. 

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? 

Indian Child Welfare Act: the latest news from the US

There is a great deal that has been happening with respect to the Indian Child Welfare Act and its ability to be an effective tool to safeguard American Indian families and tribes. Recently new Bureau of Indian Affairs guidelines were announced. This was the first time since 1979 that new guidelines had been put forward. The position of the guidelines with respect to ICWA is unclear- whether these are only advisory or whether they in fact should be given weight as binding.

The Bureau of Indian Affairs has stepped forward with a plan, however, to fill that breach, through announcing a plan to issue rules interpreting the Indian Child Welfare Act that would be binding on courts.There are several public meetings and tribal consultation sessions scheduled to discuss the proposed rule. Among other things, the proposed rule continues the message that there is no “existing Indian family” exception to the application of ICWA. In other words, judges cannot determine whether or not to apply ICWA on the basis of their own perceived strength of cultural ties of the child and family to tribal culture. The proposed rule states that: “ There is no exception to the application of ICWA based on the so-called “existing Indian family doctrine.” It further provides a “non-exhaustive list” of factors that courts cannot consider in deciding whether or not ICWA is applicable.

 Post written by Dr Sarah Sargent.

Updated Guidelines Issued by the Bureau of Indian Affairs on the Indian Child Welfare Act

For those who have been following the effects on the Indian Child Welfare Act ( ICWA) following the 2013 decision by the US Supreme Court in the case of Adoptive Couple v Baby Girl, there is a glimmer of good news. A previous blogpost (here) commenting on this decision noted that it upheld the spirit if not the letter of the Existing Indian Family doctrine, a judicially created doctrine that allowed judges to determine that they would not apply ICWA if the judge had made a determination that the child concerned did not have requisite ( as decided by the judge) cultural ties to their indigenous heritage.

On February 25, 2015, new Guidelines on the implementation of ICWA went into effect. The Guidelines were issued by the Bureau of Indian Affairs. It is the first time since 1979 that Guidelines on ICWA have been updated. There are many praise-worthy elements in the new Guidelines which will be examined in future blog posts. However, given the commentary in the previous blog post about the effect of the US Supreme Court decision on the Existing Indian Family Doctrine, it is important to note that the EIF doctrine is specifically addressed in these Guidelines. The Guidelines specifically state that “Section A ( of the Guidelines) is intended to make clear that there is no existing Indian family (EIF) exception to application of ICWA… The Department agrees with the States that have concluded that there is no existing Indian family exception to the application of ICWA.” This is certainly good news, however long overdue.

Post written by Sarah Sargent.

And the debate continues...the Keystone XL pipeline

Presidential Veto for Keystone XL Pipeline, and Concerns that the Oil Industry Brings an Increased Risk of Risk and Sexual Assault.

President Obama vetoed the Keystone XL pipeline on February 24. This is the first time in 5 years that he used his veto powers, CNN notes.  But this does not mean that the issue has ended, as the six yearlong battle over the pipeline is set to carry on, with political proponents of the pipeline seeking to override the Presidential veto. It would appear at the moment that there are insufficient votes to accomplish that.

This article (here) explains that the strong indigenous opposition to the Keystone XL pipeline construction involves more than environmental and sovereignty issues. “Community safety” is an additional concern that is noted—where the concern is that workers on the pipeline “could cause an uptick in sexual assaults against area women.|” Native American women already experience a disproportionately high rate of sexual assault. The perpetrators of the sexual assault are non-Native men, “in at least 86 per cent of the reported cases of rape or sexual assault” according to Amnesty International (here).

Links between the oil industry and an increased risk of sexual assault and rape have been raised (here and here), but this is a message that somehow seems to have attracted very little discussion. The concerns that are raised are ones that need to be addressed in any future debates about the construction of the Keystone Pipeline.

Post written by Dr Sarah Sargent.

Debate on Construction of Keystone XP Pipeline Continues: Protests by the “Cowboy and Indian Alliance”

The debate about the construction of the Keystone XL pipeline has heated up again in the United States, perhaps ironically at a time when gas prices are at near record lows. The debate about the construction of the pipeline is long-running, and it is not clear if it is going to be resolved at any time soon. US President Barack Obama has pledged to veto any approval of the pipeline construction, despite both Congressional and Senate support for the bill.

Indigenous opposition to the construction of the pipeline remains steadfast, on both the Canadian and American sides of the border (see here, here and here).

The opposition to the construction of the pipeline has been the focus of organised protests in Washington DC, including a combination of ranchers and indigenous peoples who formed the “Cowboy and Indian Alliance”.   The “Cowboy and Indian Alliance” gathered for a 5 day protest in Washington DC in April 2014. 

Whether the latest actions in Washington DC around possible approval or veto of the pipeline will result in further protests by this Alliance remains to be seen. 

Post written by Dr Sarah Sargent.

The effects of the United States Supreme Court decision in Adoptive Couple v Baby Girl: Keeping the Spirit of the Existing Indian Family Doctrine Alive

It has been just a little over four months since the United States Supreme Court handed down its decision on the case of AdoptiveCouple v Baby Girl. This is only the second case that the US Supreme Court has heard on the Indian Child Welfare Act ( ICWA).

The first was a decision that upheld tribal jurisdiction over a child whose parents were domiciled on native nation lands MississippiBand of Choctaw Indians v Holyfield.

There were concerns prior to the US Supreme Court decision that it make take the opportunity to announce support for the “existing Indian family doctrine” that renders the Act inapplicable if a judge determines the child and its family lack sufficient ties to indigenous culture and community—in contravention of the plain language of the Act. The decision did not endorse the existing Indian family doctrine—but it did limit the application of the Act in a way which is likely to create far more problems in interpretation and application than it solved.

The SCOTUS decision found that 2, and possibly 3, sections of ICWA did not apply to the father of the child. The decision finds that 2 subsections of the Act which provide heightened legal protections were not applicable- Section 1912(d) and (f). The SCOTUS decision also found that preferences for adoptive placement found in 1915(a) were potentially not applicable to this situation.

This in itself is a strained and piecemeal reading of ICWA. But what is perhaps more disturbing is the opening lines of the majority decision, which makes reference to the “blood quantum” of the child at issue—as if to suggest, in keeping with the judicially created existing Indian family doctrine—that the child was not “Indian enough” in the eyes of SCOTUS to make ICWA relevant.

While the SCOTUS decision did not rule directly on the applicability or legitimacy of the existing Indian family doctrine, it does keep the spirit of that doctrine alive and well. The tenor of the SCOTUS decision suggests that it is still within the purview of the courts to comment on the degree of “Indian-ness” a parent or child possesses— and in so doing ignoring both the clear letter and spirit of ICWA which grants courts no such authority at all. 

Written by Sarah Sargent.   

 

Two Tales of the Indian Child Welfare ACt

Two Tales of the Indian Child Welfare Act

There are two stories in the media currently about the Indian Child Welfare Act (ICWA).  One is about a case pending for a decision as to whether it will be heard by the United States Supreme Court. 

The other seems to see relatively less light of day—that of the on-going call to address the high rates of removal of Lakota children in South Dakota. The case pending in front of US Supreme Court  calls for the recognition of the pernicious Existing Indian Family Doctrine in relation to the adoption of a young Cherokee child. (link to brief filed in the US Supreme Court on behalf of the child, birth father and the Cherokee Nation)

 The Existing Indian Family Doctrine allows judges—in their discretion and applying their own standards- to avoid the application of ICWA with a finding that a child is not “Indian enough” to apply ICWA, even though the child meets the application threshold of being an “Indian child” as defined in the Act.   

ICWA is on the one hand  thus presented as the villain—coldheartedly stripping children from the arms of loving parents. The great irony in this presentation is that ICWA was created to prevent just that scenario (albeit with one difference—the parents ICWA is concerned about are those of the child and not of prospective adoptive parents)—the removal of children from their families and communities. The wholesale removal of indigenous children done in the interests of assimilation was to have stopped with the passage of ICWA in 1978. The testimony  in support of the Act makes for harrowing reading.

But even more harrowing is the reality that the removals of children has not stopped. NPR called attention to this with a series aired well over a year ago. There are calls for Congressional inquiry into the practices that result in the removal of so many indigenous children.

  

But instead of outcries against this there instead seems to be a  determined silence about those indigenous parents in anguish and  the injustice of those actions which remove children from their parents and community.

ICWA is an important and forward thinking act. It is as necessary today as it was in 1978. The problems with the Act arise not because of the Act itself, or from any need to abolish it or give any credence to the judicial embarrassment that parades as the Existing Indian Family Doctrine. The problems arise in each instance—that in the pending US Supreme Court case and in South Dakota—when the Act is not adhered to. The problem is not the Act, but in the failure to comply, and perhaps more importantly, with those attitudes that persist in a willful ignorance about the Act which try to legitimize efforts to evade it.

Calls for Summit and Congressional Investigation into Child Welfare Practices

The forced and unwarranted removal of indigenous children from their family and communities is an assimilative practice that has been decried. In the United States, the law has changed--at least on paper--to prevent the sort of wholesale removal that occured prior to the 1978 passage of the Indian Child Welfare Act.


But compliance with the requirements of ICWA and a lessening of the numbers of children that were removed from their families has been an ongoing fight ever since. It is one thing to change laws, it is another thing altogether to change practice.

For several months now concerns have been raised about child welfare practices in South Dakota. In 2011 NPR ran a report that highlighted the events that gave cause for concern about removal of Lakota children from their families and tribal communities.

In November 2012,a report detailing continuing concerns over child welfare practices was issued by "coalition of tribal directors from the state's nine Sioux tribes"

An executive summary of the report issued by the Indian Child Welfare Act Directors-- "representing six of the nine American Indian tribes in South Dakota"--
can be found here .

Further action took place with a letter sent on December 7 2012 by two US Congressman to the Assistant Secretary for Indian Affairs, which calls for "for Bureau of Indian Affairs summit and a Congressional investigation into the South Dakota Native Foster Care system".

Additional information and ways in which to get involved in this call for action can be found at the website for the Lakota People's Law Project.

It now remains to be seen what response there will be to the Congressmen's requests and the other concerns that have been raised for many long months.

Report and Response: The Situation of Indigenous Peoples in the United States of America

James Anaya, the Special Rapporteur on the Rights of Indigenous Peoples, made a landmark visit to the United States earlier this year to evaluate the circumstances of the indigenous peoples in the United States. His report of August 30 2012 provides a comprehensive overview of the triumphs achieved and challenges faced by these communities.

On September 18, 2012, the United States made its Response

to this report at the Human Rights Council 21st Session in Geneva.

The Response acknowledges the “high rates of poverty, illness, substance abuse, suicide, and incarceration, as well as relatively low levels of education”. The Response goes on to explain how the United States is addressing these problems, citing among other things, funds from the American Recovery and Reinvestment Act provided to “renovate schools on reservations, encourage job creation, improve housing and energy efficiency; and support health facilities and policing services.”
It also references other legislation, such as the Affordable Care Act and the Tribal Law and Order Act.
Given the magnitude of challenges that some indigenous groups face, this is a tepid and rather disappointing response. It is to be hoped that this is only a preliminary response and not the whole of the United States’ reply to the Special Rapporteur’s report. Unmentioned is the pending Violence Against Women Act that would provide criminal jurisdiction for some offenses committed on indigenous homelands. Unmentioned is the UNDRIP itself and any steps that the United States is taken to implement it in the wake of its eventual endorsement. Unmentioned is any response to Mr Anaya’s call for specific steps for reconciliation, and that “unless genuine movement is made towards resolving these pending matters [specific unresolved problems of historical origins and systemic dimensions... problems [that] continue to breed disharmony, dislocation and hardship] the place of indigenous peoples within the United States will continue to be an unstable, disadvantaged and inequitable one.”

In light of that, the Response can scarcely be credited as being a response at all.

Despite Legal Protections Sacred Spaces Still At Risk: The Black Hills

It is a situation that repeats itself with depressing regularity. Despite legal protections put into place by domestic, regional and international law, there seems to be no end to the onslaught of destruction to indigenous sacred places. The United Nations Declaration on the Rights of Indigenous Peoples provides specific protections for indigenous lands. There is article 8(2)(b) which requires state to “provide effective mechanisms for prevention of and redress for... any action which has the aim or effect of dispossessing them [indigenous peoples] of their lands, territories or resources.”

Further, there is Article 11(2):

"States shall provide redress through effective mechanisms, which
may include restitution, developed in conjunction with indigenous
peoples, with respect to their cultural, intellectual, religious and spiritual
property taken without their free, prior and informed consent
or in violation of their laws, traditions and customs."

Sacred spaces are surely “spiritual property.”

Article 26 is very clear about the protections to be given to indigenous lands:


"Article 26
1. Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or otherwise
used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by reason
of traditional ownership or other traditional occupation or use,
as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted with
due respect to the customs, traditions and land tenure systems of the
indigenous peoples concerned."



It is not disputed that the Black Hills are sacred to indigenous peoples nor that they were wrongfully taken. The United States Supreme Court, in its 1980 ruling in United States v Sioux Nation of Indians , made that clear.

Yet, according to this news report, another sacred space is being made vulnerable to destruction in the name of development. The article states that development plans are “spelling the end of one of the last quiet vestiges of traditional Lakota worship in the Black Hills, or Paha Sapa.”

What can be done to preserve sacred spaces? What good are provisions in international instruments if they are not enforceable and beyond the reach of those who need to access them? And while academic and bureaucratic debates and conversations abound on these matters, fragile landscapes continue to disappear. Surely this is unacceptable. Surely indigenous sacred spaces should be given legally required protections. Surely accessing those legal protections must not be put out of reach by those who need to avail themselves of these. But what is being done—in concrete practical terms—to make these legal provisions useable and meaningful?

A Different Story: Media Stories about Contemporary Indigenous Life

All too frequently, media depictions of indigenous peoples gives a very one-sided picture of them as passive victims, and fails to capture the resilience and vibrancy of modern indigenous lives. Perhaps mainstream media and culture are more comfortable with that image of indigenous peoples, but now and again a more rounded and complete account of indigenous peoples appears.



According to this news story, the Lakota Peoples Law Project speaks favourably about the depiction of life in the Pine Ridge Reservation in the National Geographic Article, “In the Shadow of Wounded Knee.”
Both the newstory and the National Geographic article provide informative and balanced stories on indigenous life and the way in which history is a source of strength and identity in the present, not a tale of unmitigated victimhood and suffering. These are stories well worth reading, that give an unblinking and insight view into contemporary indigenous lives.

These media stories tell a different story, removing the all-too-prevalent and inaccurate portrayal of indigenous peoples as nothing but victims.

The end of the road for the Wetlands? A continuation of the “Trail of Broken Promises” and failure to protect indigenous sacred spaces

Is the 10th Circuit Court of Appeals ruling on the fate of the wetlands adjoining Haskell Indian Nations University in Lawrence, Kansas, USA the end of the road? On July 10, 2012, the 3 judge panel made a unanimous ruling that would permit the construction of a road across the wetlands.

This is despite the arguments raised to preserve the wetlands as historically significant. This court ruling is not welcomed news for those who favour the preservation of the wetlands. The court's ruling fails to capture the importance of the wetlands and their connection to the history of not only Haskell, but of indigenous peoples and their relationship, past, present and future to the United States. Commentary on the wetlands has been the subject of a previous blog post.

The 10th Circuit decision can be seen as just one more event in the chain of events that devalues the sacred spaces of indigenous peoples. As detailed in this news story, Haskell students completed their “Trail of Broken Promises” walk on June 29. The walk was in support of proposed legislation that would provide additional domestic protections for indigenous sacred spaces, the Protection of Native American Sacred Spaces Act.

This fact sheet provides an overview of the US legal protections for sacred spaces, but comments that despite these, “There are numerous existing laws intended to protect Native American sacred places and even more that can be used to do so, but most of these laws are being ignored and flaunted.”

Until the laws are adhered to with regard to sacred space protection, the "Trail of Broken Promises" seems likely to continue.

An Unlikely Birthday Guest and Remembering the Anniversary of the Battle of the Greasy Grass

Today marks the 126th anniversary of the Battle of the Greasy Grass. Once regarded as a supreme national tragedy by the white “settler” society in the United States, it is an event that has slid off the radar for that same society. If remembered at all, it is through the lens of old Western movies that trumpet about the glories of “Custer’s Last Stand.” Yet there is another group that commemorates this day and have not forgotten—the indigenous peoples whose ancestors fought in that battle and struggled to survive in its aftermath.



Last night, there was a very insightful and informative interview on this anniversary on Kansas City Public Radio, KKFI, with guests Chase Iron Eyes who founded the website LastRealIndians.com and Marei Spaola commenting on the meaning of the battle—both in the historic past and its reverberations and meanings into the present day. This battle—The Battle of the Greasy Grass, Custer’s Last Stand, or the Battle of the Little Bighorn—occurred at a time that the United States government was trying to control the Black Hills of South Dakota, which only a few short years ago it had agreed was to be the land of the Great Sioux Nation” through the Fort Laramie Treaty of 1868. There was a concerted effort by the US government to force indigenous groups onto reservations, in a deliberate breach of this treaty. ( In 1980, after protracted litigation, the United States Supreme Court ruled the US government owed monetary damages to the Sioux Nation for breaching this treaty and taking the land in the case United States v Sioux Nation of Indians). As the speakers during the interview pointed out, the battle is not only about the events of that day, but of the breach of the treaty, stolen land and efforts to force assimilation of indigenous peoples—effects which continue in the present-day.

I have debated myself in my own thoughts about how and whether to blog on this day about the anniversary of this battle. Do I even have anything meaningful to contribute to what has already been masterfully said about this anniversary and its place in the collective memory of some and not in others? In the end, I have decided to give my own personal reflection on the anniversary.

I grew up sandwiched between two forts—Fort Leavenworth and Fort Riley. Both featured in the “Indian Wars” of the expansion of the United States. Fort Riley for a time was the home of the Seventh Cavalry, the unit that Custer headed in the Battle of the Greasy Grass. But those forts left little impression on me growing up—what did catch my attention was the horse that I often had as a “guest” at my birthday party.

As a child (and as an adult!) I was completely mad about horses. Anything at all to do with horses fascinated me, held my attention. Even if it was an old barn where horses had once been—that was hallowed ground. It did not matter so much if the horse was not living and breathing—certainly live ones were the best, but there was a particular horse that did not live and breathe that was the birthday party “guest.” This was the preserved remains of the horse, Comanche.

Comanche was on display at the University of Kansas Museum of Natural History. Comanche had been the horse of Captain Myles Keogh, who was part of Custer’s regiment and was killed during the Battle of the Greasy Grass. Comanche was found, wounded, on the battlefield by the US Army a few days after the battle. He was billed as the “sole survivor” of “Custer’s Last Stand” and retired to Fort Riley as an iconic symbol of the “Indian Wars”. After his death, his remains were mounted and displayed at the University of Kansas. After a time, the exhibit around him grew to include the story of the indigenous peoples who were part of the battle, and Comanche was no longer billed as the sole survivor—because that of course, as romantic and tragic as it sounded, was incorrect. (This website indicates that the display has now been changed to remove that information, which is very disappointing indeed, but perhaps reflective of the airbrushing of the battle from white America’s collective memory)

Of course, when I first set eyes on the preserved Comanche, I had no idea of this history. All I saw before me was a horse. That captured my attention, and with frequent trips to the museum ( this was a treasured, favourite Sunday afternoon family outing) I learned about the battle, and the struggle for survival that surrounded it. I went home and voraciously read about that and more in Dee Brown’s book, “Bury My Heart at Wounded Knee.”


Because of the display and its information, which included a recounting of events from an indigenous view point, Comanche opened up a window to the past and to the present. As a child, I knew that the anniversary of the battle was June 25, because that day fell near my own birthday, and I always wanted to hold my birthday celebration at the museum, with Comanche as a “guest.” On that day, I would approach the glass case more reverently than usual, holding my breath and willing my child’s imagination to go back over time to that day, trying to imagine what the horse had seen and heard, the silent witness. I tried to imagine what it had been like on that day—and the days after, when Crazy Horse was murdered, and Sitting Bull fled to Canada.

It is hard now from the vantage point of adult hood to describe what those moments meant or how they burned themselves into my consciousness. Comanche for me was not a symbol of tragedy or triumph—he was a horse. But he was a gateway into an understanding of an event, of a time, of lots of time and events, that as interviewee Chase Iron Eyes said in the radio interview, also contribue to the shaping of the present day. Perhaps some of this is expressed in the famous William Faulker quote, “The past is never dead. It’s not even past.”

Comanche was a gateway into understanding the stolen land I stood upon, of the treaties broken and promises broken and lives shattered as the US trumpeted its Manifest Destiny. He was a gateway into learning about those events from the indigenous perspective as well as that of white America. And he stood for something else to me, somehow, this silent witness to the past and of the present— to me reflecting somehow the survival and resurgence of the indigenous peoples in the face of those events that were meant to annihilate and assimilate them.

It has been quite awhile since I have gone to see Comanche for my birthday. But I will have a chance again, when I will be home again in only a few more short days. And one of the things that I will do is step up to the glass case that surrounds him, close my eyes, and remember.

US Government as the Grinch: Commentary on US Supreme Court ruling on tribal trust land

As the British might describe it, the state of affairs to do with self-determination, autonomy and inherent sovereignty and indigenous lands in the United States is a bloody mess. The United States government has spent the past two hundred plus years trying to sort out what relationship it wants with the indigenous groups that were there first, before the US, before the first European colonizers made their way over the ocean.

On the one hand, the US has an invented fiction now accepted as fact in the form of the Thanksgiving holiday “tradition” that venerates the help of indigenous groups that saved the “Pilgrims” from starvation at Plymouth Colony. The tradition goes that without the help of the benevolent and altruistic neighboring indigenous groups, the Pilgrims would not have known how to plant crops and harvest them in the New World and would have died rather miserable deaths of starvation and disease in what was meant to be the land of plenty. After being saved by the wisdom of the Indians, a big harvest feast was thrown where everyone got together in a happy celebration, perhaps not unlike the Christmas feast after the Grinch found out his heart was not in fact three sizes too small and that he could enjoy a feast with the Whos.

As a child growing up, playing outside with neighbourhood kids and making up games (yes I was fortunate enough to grow up in a time when this was possible and the word play-date had never been uttered) around October we started to play “Pilgrims.” The problem was, no one in fact wanted to play the Pilgrim, we all wanted the role of the Indians. The Indians were cool, skilled, heros. The Pilgrims were sort of grim and mostly ungrateful bumblers.

The United States like its Indians in myths and traditions, in dusty relics of the past, in sports mascots and nicknames. Presented like that, Indians are just like envisioned in my childhood games: cool, skilled, heros.

Thus, on the other hand, The United States government has never really gotten over the fact that the indigenous groups within its boundaries or on the land it wanted to put in the boundaries were there. It tried to make them go away. It tried massacres. Then again, from time to time, the United States thought it might be helpful to be friends. Especially when there was a war to be fought against the British. So the United States would strike up treaties of friendship, treaties that made provisions for land and so forth. But then it would be back to business as usual and the United States government would be again trying to find ways to make the Indians go away. If massacres did not work, perhaps shipping them off to lands no one else would want would work. That was fine for awhile, until it turned out that the United States really wanted that land after all. Then assimilation was tried. Perhaps simply getting the indigenous groups to fade into the European white society would work. Nope, that did not work either. Unrecognizing all the tribes might force the issue... reorganizing them on a blueprint that mimicked the assimilative government styles of white society and that disregarded the traditional ways in which peoples had lived and organized themselves, quite successfully in fact.


Now and again the United States would have a pang of conscious. Self-determination era. Restoring lands that were taken—albeit held in trust by the United States for the benefit of the tribe. Occasionally deciding to pay monetary damages for treaties breached and land stolen.

The thing is, the US just cannot make up its mind what its relationship should be with indigenous groups. Now it seems to be backfooting, this latest United States Supreme Court decision reveals the utter farce of the way in which the US deals with trust lands, and anything else they have been trusted with in regard to indigenous groups. This is a ridiculous decision and deserves to be treated with contempt and utterly condemned. There is no judicial soundness in the decision. If this were the answer to a law exam question, it would have been failed as being pure fiction based on no legal authority. But this is not an errant student. It is the United States Supreme Court and once again, in its supreme indecision and flip-flopping of whether to be friend or foe to indigenous groups, it has added a new layer to the bloody mess it makes of state-indigenous relationships.

Unlike the Grinch, who eventually overcame the problem of a heart three sizes too small, the United States Supreme Court and the government is unable to do this, and instead slither about in the dark, forcing trees and presents and such back up the chimney--taking back what was never really theirs to seize in the first place.

Forced and Involuntary Removal of Children

In an earlier blog post, I began to address the complex topic of the intercountry adoption of indigenous children from Guatemala as one aspect of the occurrences of forced removal that is denounced by the UN Declaration on the Rights of Indigenous Peoples. This blog post picks up the topic again, looking at the practices of forced removal of children.

Involuntary or forced removal of children is not a new phenomenon or something that has been done only to indigenous children. There are historic and current examples of removal of children who are on the margins of society.
Researcher Tobias Hubinette comments on this in his chapter “From Orphan Trains to Baby Lifts: Colonial Engineering, Empire Building and Social Engineering” in the book “Outsiders Within: Writing on Transracial Adoption” published by South End Press. He comments (pg 141):

“The closest parallels to international adoption in the history of global child migration would be the 130,000 children shipped from the British Isles to populate the Empire between 1618 and 1967, and the 1000,000 American children transported by the “orphan train” from the East Coast and placed out to substitute parents in need of labor in the Midwest between 1854 and 1929.”

Removing children from their families and communities can have the devastating and obvious impacts—breaking up family units and destruction of community structures. But the harms go further and deeper. It is one way to attempt to eradicate a group if not physically then culturally. As an African-American social worker friend and former colleague once remarked to me, the most effective way to bring an end to a group of people is to take their children. The National Association of Black Social Workers (USA) has a position paper that outlines the concerns that arise due to disparate treatment of African-American children in the US foster care system and the importance of children maintaining links with their culture and community.

Forced removal of indigenous children has been given a high profile. The 2002 film "Rabbit Proof Fence" addresses forced removal of children in Australia. The ongoing Canadian Truth and Reconciliation Commission addresses the forced removal of children to residential boarding schools. And the 1979 US federal Indian Child Welfare Act was passed in order to address the high rates of forced removal of indigenous children.

Intercountry adoption is another way in which forced removal of indigenous children has occured . And this was part of the dynamic of intercountry adoption in Guatemala, which future blog posts on this topic will address.