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.

Turning Its Back on the Existing Indian Family Doctrine: Decision from Kansas Supreme Court

On May 4, 2012, the Kansas (USA) Supreme Court issued a decision that upholds the importance of compliance with the Indian Child Welfare Act. The decisions coming from Kansas, since its repudiation of the Existing Indian Family doctrine in 2009 have been very clear that it will be intolerant of noncompliance with ICWA. The Kansas cases attract attention, in no small part because of their symbolic, if not binding value, since it was the Kansas courts that came up with the Existing Indian Family doctrine in the first place. Other courts began to use this doctrine as a way to evade the application of the Indian Child Welfare Act. In short, if a judge –using his or own criteria—decided if a child was not “Indian enough”, that was used with the application of the doctrine to avoid the requirements of ICWA.

(See earlier blog posts on the Indian Child Welfare Act and the Existing Indian Family Doctrine here and here, for commentary on the pending South Carolina case at this link )

The kinds of cases that attract the application of the Existing Indian Family doctrine are often where there is an indigenous father and non-indigenous mother, and the mother wishes to put the child up for adoption, and a non-indigenous family has been selected as the prospective adoptive placement. These are the facts of the case decided by the Kansas Supreme Court, and similar to the facts of the case awaiting a decision from the South Carolina Supreme Court.

The Kansas decision turned on, among other issues, whether the order of placement preferences under ICWA had been followed. The statutory preferences are to be adhered to, unless the child’s tribe has set out a different order of preference. There was no indication in the decision that the tribe had a differing order of preference. Thus, the statutory preferences had to be followed, unless good cause was shown as to why they should not be. The statutory order of preference is
1) The child’s extended family
2) Other members of the child’s tribe
3) Other Indian families
(Sec 1915 of ICWA)

It is important to note as well the role played by the Cherokee Nation in this case. Under the provisions of the Indian Child Welfare Act, the child’s tribe can become involved in the case, and this is exactly what happened here. The Cherokee Nation filed as the Appellant with the Kansas Supreme Court. ICWA recognises the importance that a “tribe” has in and for indigenous families and children.

Kansas courts are now headed in the right direction in their interpretation and application of the Indian Child Welfare Act. Kansas has firmly turned its back on the usage of the Existing Indian Family Doctrine: it is hoped that the few other states that continue to use this doctrine will follow suit.

"It is not getting any brighter out there.."

Frank Zappa is quoted as having said something along the lines, “It is not getting any brighter out there. You have to come to terms with stupidity and make it work for you.” This comes to mind as I read about the political controversy that is being made about whether or not Elizabeth Warren, running for the US Senate is or is not a “Native American.”
The entire brouhaha unwittingly sheds light on the deeply racist policies that have been used in the United States to create systems of racial classification, and how that thinking still permeates society, even if the laws have changed.

Does Elizabeth Warren have ancestry from someone who was a Cherokee? That is the very simplistic question that is thrown around in the American mainstream media, and the commentary that flows from it demonstrates a deep ignorance of the way in which the United States laws classify who is an Indian. (And as an aside, which group of Cherokees do they mean? As with many indigenous groups that were forcibly relocated, there is more than one "tribe."I believe there are three distinct groups of federally recognised Cherokee "tribes" whereby each would have their own tribal membership criteria.)

Is being descended from someone with indigenous heritage enough to be able to say that a person is “an Indian”? The entire controversy kicks up around this very European-introduced notion of “blood quantum”, that a person has to be some fractional measure of indigenous blood to be “an Indian.”(See the Native News Network commentary on this at this link)

Now this was never a concept that came from indigenous groups themselves. They did not sit around measuring the fractions of blood in a way that is horrifically reminiscent of people discussing the pedigree of a show dog or horse. The basic idea is that someone has to have the requisite fraction of indigenous “blood” to be considered indigenous. Contrast that with the “one-drop” rule that said any one with one drop of African “blood” was black and not white. Why the difference? One is trying to limit the number of people who are indigenous, the other making a very group of people who are “not white.” If one looks to the differing policies that were addressed to each group in the US at various times in history, indigenous groups were the target of plans of genocide and then forced assimilation. They were supposed to disappear, one way or another. On the other hand, deeply racist sentiment towards anyone of African descent meant a rigid classification system and legal segregation that was not legally dismantled until very recently, as with for instance the United States Supreme Court decision of Brown v Topeka Board of Education in 1954 on racially segregated education.

Now the truth is that the United States has a very strange system of determining “who is an Indian.” It has split groups into federally recognised tribes and groups, that while undoubtedly indigenous, are not federally recognised ( see for instance the blog post on the Winnemem Wintu peoples). Federally recognised tribes determine their own criteria for membership. There are roughly 575 federally recognised tribes, and so, potentially 575 ways to be a member of a tribe. Some might use blood quantum. Some might use lineal descent. The thing is—there is no hard and fast rule of what someone has to “be” in order to be a member of a federally recognised tribe. And a person might very well be indigenous, and a member of a group that is not federally recognised, or have indigenous heritage, in the same way Americans self identify as Irish-American, Italian-American, German-American, and so forth without people quibbling over fractions. OK, the indigenous groups of America did not disappear. This seems to be a somewhat disturbing revelation to some, who then insist that the only “real” Indians are those who live in some cultural time warp and no one else counts. This is the thinking that fuels the “existing Indian family doctrine”.

The controversy about Elizabeth Warren to me reveals the deep discomfort and ignorance that permeates much of mainstream American society about indigenous peoples. And the controversy makes me think of Frank Zappa’s apt quote. Indeed, sadly, “it is not getting any brighter out there..”