Indian Children: Citizens, not Cultural Artifacts

Are Children’s Lives Destroyed by ICWA?

Attend the Indian Child Welfare Act “Teach-In”

Friday, October 28, 2011, 9am - 1pm

Senate Committee on Indian Affairs Hearing Room, Dirksen Bldg, Wash, DC

Keynote speaker: Dr. William B. Allen

Across America, children who had never been near a reservation nor involved in tribal customs - including multi-racial children with extremely minimal blood quantum - have been removed from homes they know and love and placed with strangers chosen by tribal social services.

The Indian Child Welfare Act was passed in 1978 in effort to help prevent Native-American tribes and families from losing children to non-Native homes through foster care and adoption. Though well-intentioned, the Act is now harming children all across the country as courts and tribes place culture and tribal sovereignty above children’s basic needs for permanency and stability.

Come hear real stories of children whose lives have been impacted by the Indian Child Welfare Act. Listen to legal experts and scholars discuss the constitutionality of an Act that limits placement options and delays permanency for many of our nation’s most vulnerable children.

1) Some Children have been removed from safe, loving homes and placed into dangerous situations.

2) Some families, Indian and non-Indian, have felt threatened by tribal government. Some have had to mortgage homes and endure lengthy legal processes to protect their children.

3) Equal opportunities for adoption, safety and stability are not always available to children of all heritages.

4) The constitutional right of parents to make life choices for their children including political associations has been interfered with.

5) The constitutional right for children of Indian heritage to enjoy Equal Protection has in some cases been denied.

Letters from tribal and non-tribal birth parents, extended family, foster parents and pre-adoptive families can be read at http://www.caicw.org/familystories.html

In the words of Dr. William Allen, Emeritus Professor, Political Science, MSU and former Chair of the U.S. Commission on Civil Rights (1989), 

“... 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…"

The Christian Alliance for Indian Child Welfare (CAICW) is the only national organization advocating for families who have lost or are at risk of losing children due to application of the Indian Child Welfare Act (ICWA). We well understand the original purpose of the Indian Child Welfare Act. Although ICWA has safeguards to prevent misuse, stories affecting multi-racial families abound across America. It is important that we come together as a community to talk about them.

Are Indians Protected by the Constitution?

.
Reflections on the Chocktaw Decision (1998) (emphasis by Blog author)
By Dr. William Allen

In a major decision delivered earlier this month, the Supreme Court held that Indian parents have no rights over their offspring that the federal courts will protect. The case was Mississippi Band of Choctaw Indians v. Holyfield, and considering its significance, it is shocking how few people have paid attention to it.

The facts of the case are uncomplicated. The mother of twins, with the consent of their natural father, elected to give birth to her children two hundred miles away from the Indian reservation where she lives. The reason: She preferred to have her children adopted off the reservation. She found willing adoptive parents in Orrey and Vivian Holyfield. Acting in concert, the natural parents arranged for the birth of the twins, respected the prescribed procedures of the law as far as they were known, and effectuated the adoption.

The case makes no suggestion of any exchange of money or other kind of consideration. The natural parents were not bribed, the children were not sold. Apparently the natural mother and father were acting on their judgment about the best interests of their children. The matter is analogous to the Mexican mother who exerts herself to give birth on American soil in order to give her child the advantage of United States citizenship.

To the untrained eye there would be nothing here to go to court about. Though unmarried, the mother and father agreed. They found willing adoptive parents. And they followed the laws applicable to U.S. citizens.

The mere fact that they were Indians, however, robbed the parents of their rights.

Standing between the wishes of the parents and the interests of the twins is the Indian Child Welfare Act (ICWA). Congress’s aim in the act was to preserve the racial integrity of Indian tribes in general and the cultural integrity of particular tribes. Congress responded to a legitimate problem—namely, how to halt the wholesale removal (especially the involuntary removal) of Indian children from tribes. But Congress’s solution came at the cost of closing state courthouses—and even federal courts if the majority on the Court is to be believed—to Indian parents and children.

In the Court’s interpretation, the Indian Child Welfare Act gives a tribe veto power over the wishes of both parents and children in custody cases.

Although Congress mandated in the law that the wishes of parents and children should be considered, and that decisions be made in the best interests of children, the act’s lodging of final authority in tribal courts, which are not even reviewable in federal courts, means that those mandates of Congress are rather prayers than orders.

How could Congress justify this closure of the federal courts to Indians? The Choctaw tribe, in its brief to the Supreme Court, sought to couch the denial of court access in the familiar language of affirmative action: “. . . . if a jurisdictional holding occasionally results in denying an Indian plaintiff a forum to which a non-Indian has access, such disparate treatment of the Indian is justified because it is intended to benefit the class of which he is a member.”

Group benefits; individual penalties—that is the recurring lesson of state-sanctioned racial preferences, benign or malign. The question is, why does the Supreme Court extend to Congress a benefit of the doubt on this affirmative action program in the first place? That is where the ambiguities of Indian law come into play.

To start, Indian law is a sub-category of American law, treated neither by the Court nor by Congress as fully comprehended within American law. Indian tribes are called “dependent sovereigns,” meaning that Congress can deal with them in their corporate capacities without regard to the effects of its actions on Indian individuals.

The ambiguity enters when one notes that Indian persons, as opposed to tribes, are also citizens of the United States—paying our taxes, participating in our elections, and defending our freedom. When, therefore, Congress and the Court abandon these brothers and sisters of our equal liberty to the rule of their tribes, Congress and the Court (and we through them) are actually withdrawing certain of the guarantees we otherwise promise and certainly expect for ourselves.

In the Mississippi case these questions of constitutional status did not arise, for the Court rightly limited itself to statutory interpretation. No constitutional questions were raised in the arguments for the case, although that may only reflect the fact that the parents were not represented there. If the Supreme Court had considered the constitutional questions involved, the decision might have been very different. A consideration of the constitutional questions involved may well have produced a Yoder-like decision, reaffirming a “charter of rights for parents.”

Yoder, of course, was the 1972 case that defended the right of the Amish community to be different by defending the right of Amish parents to guide the religious upbringing of their children. There the Court ruled that Amish parents could not be compelled to send their children to high schools because of the devastating effects such a practice would have on Amish culture. Yoder shows us how we can preserve people’s distinct cultures and ways of life by means of defending the individual rights of parents and children.

The rights of all Americans are implicated in the denial of rights to Indian parents sanctioned in Choctaw. The notion of truly sovereign tribes connected to the United States by treaty rights became untenable from the moment Indians became citizens. The granting of citizenship to Indians interested every other American in the limitations and privileges of Indian citizenship.

If American citizenship per se poses no limitation on the power of Congress to legislate away the rights of Indians, we must sooner or later expect other citizens to be brought no less surely under the so-called “plenary power” of Congress. Our Indian brothers and sisters cannot defer to the “great white father” without making the rest of us equally vulnerable. The problem highlighted by enforcement of the Indian Child Welfare Act illustrates the foolishness of preserving “independent” tribes within “subordinate” states. We were better off when the tribes were entirely and truly sovereign.

[1] Published in the Okanogan County Chronicle (Omak, WA), August 2, 1998.
.

THE NEW RACISM: William B. Allen's thoughts on ICWA -

.
Excerpt from Dr. William Allen's article "The New Racism." (emphasis is Blog Author's)

Dr. Allen is a Professor of Political Science, Department of Political Science; Michigan State University as well as the former Chairman, United States Commission on Civil Rights, August 8, 1988 to October 23, 1989

"...while Congress has the power to alter Indian law and practice, it also has the power to abstain from doing so. In short, Congress may treat Indians just as it pleases, and without regard to the ordinary protections other Americans take for granted. Nor has Congress failed to follow up on this opportunity.

In the very year the ICRA was ruled to be unenforceable in federal courts, Congress passed the Indian Child Welfare Act (ICWA), in which Congress made explicit the tacit premise of all our Indian policy. An Indian is as such not permitted to assert rights of American citizenship, even while Indians are almost universally admitted to citizenship whether on or off reservations. Indians vote in all of our elections; they pay our federal taxes; and they defend our liberties in the country’s wars. Indeed, Indians are dramatically subjected to the obligations of citizenship even in one case in which certain other citizens are exempted: they must pay social security taxes. Congress specifically exempted the “selfsufficient” and “independent” Amish from the need to pay social security—a privilege Indians lack altogether.

In the ICWA the Indian individual, parent and child, is subordinated to the cultural identity of the tribe. By assigning jurisdiction in child custody cases to tribal courts, whether the child and/or parent is on or off the reservation and despite their dissent in most meaningful cases, the Congress has effectively ordered that Indian children be placed specifically with regard to their race and, more importantly, that state courts in particular close their doors to Indian suitors. Congress’s express interest in preserving the integrity of Indian tribes has been executed in such a way as to destroy the integrity of individual Indians. Now is the time to repeat: Indians are almost universally American citizens. Accordingly, what this exercise of power by Congress means is that Congress is free to dispose of the persons and properties of citizens entirely on the basis of race, and without the customary safeguards of-the Constitution.

How came Congress to exercise such power over the American Indian? In a word: treaty relations! One might rightly inquire how it can be possible for the government of a free society to deal with its own citizens (and only some of them at that) by means of treaty—thereby escaping the obligation to assure the equal protection of the laws. Congress has never attempted to answer that question, preferring to hide behind the fiction that treaties executed before Indians became citizens remain in effect after they are citizens. We will not be fooled by that device, however, for we recognize that if treaty obligations persist despite and indeed at the expense of citizenship, then there is no reason assignable why Congress may not enter into treaties with any of its citizens, suitably defined in terms of group affiliation (the most accessible of which is race).

The power Congress exercises threatens not only the Indian, therefore, but every American; for it reveals a device whereby to elude the limitations of the Constitution. Given the rapid Lebanonization of American society that has been inspired by policies of racial preference, the prospect is frightening indeed. It remains now but to answer whether this development is innocent—a by-blcw stumbled across by despotic souls ever ready to aggrandize themselves?

Far from it, it is rather the natural fulfillment of that design which was originally aimed not only at the Indian but at all the United States. The architect of American Indian policy was the selfsame architect of the positive good school of slavery, and the theoretical argument that republican government was inefficacious and should be replaced by government on the model of rationally distinguished interests or cultures engaging in mutual bargaining for the sake of their respective members. The affirmative action regime is not new; it was invented in the 19th century. The Indian policy is only the most advanced stage of the affirmative action regime a glimpse of the future that awaits us.

The 1824 Secretary of War who invented the Bureau of Indian Affairs by his own fiat, and laid out the guidelines of a government serving as a “great father,” in fact bequeathed to us what today we falsely recognize as the “new racism.” It is, in fact, the racism of yesteryear, rejecting in its principle, as it was designed to do, the central tenet of Americanism, the belief in self-government.

Behold the examples of even our most recent policy decisions. See how these decisions aggrandize the power of the state at our expense, and all in the purported service of the new regime. Then inquire anew whether we should not quickly learn to employ George Washington’s language toward the Indian, “our brother,” thence springing to his defense as the surest means to defend ourselves....

Spoke at the Mille Lacs Symposium re: ICWA

.
I was asked to speak about ICWA at the Mille Lacs Equal Rights Symposium this last weekend. This was, I suppose, a chance for rebuttal to the slander that occurred last year in Mille Lacs under the banner of the Minnesota Human Rights network. However, I never mentioned last years meeting. Others did that plenty.

Dr. William Allen, the former chairman of the U.S Commission on Civil Rights, was the keynote speaker. Dr. Allen was awesome.

We had the privilege of breakfast with Dr. Allen just before the symposium. We stayed with a Mille Lacs county commissioner who has been a friend of ours for years, (prior to him becoming a commissioner.) He invited Dr. Allen to come over for breakfast prior to the meeting. Bill Lawrence, the publisher of the Native American Press/Ojibwe News and a member of the Red Lake tribe, was also there. I'd written for his paper a few times in the 1990's.

It was incredibly comfortable. Dr. Allen, who is a professor in political science at Michigan State, had some really interesting things to say about the current presidential campaign. I wish I'd taken notes.

Now the Seminar -

I was very nervous. I've written a lot and said a few words at a few different places, but I've never spoken for 45 minutes before. However, although I'm not the best speaker, the reaction after the meeting was overwhelming. A legislator from Minnesota was there and wanted more information. Others came up to speak to me - all very encouraging. One woman was almost crying! I gave out several of Roland's videos. A pastor we knew from western Montana was also there - he'd moved several years ago. He wanted us to spend the night with him last night (but we needed to get home)

One man wanted to give me a deer-hide drum he'd made in exchange for two videos. So we traded.

But the reaction to my presentation is nothing compared to the the speech Dr. Allen gave concerning federal Indian policy, ICWA, and the underlying goals and thought processes behind them. His comments were incredibly insightful. ALSO he is interested in writing more on these issues after he's finished with his current project in January.

Dr. Allen left from the meeting to catch his flight back to Maryland. The girls and I went back to to the Commissioners home, where we spent a couple of hours with him, Bill and their wives sitting on the porch overlooking the lake. Again, I am so grateful for how comfortable the conversation was.

Maybe it's because we've all been attacked together over the years because of our tribal politics. I don't know. Maybe it's because they knew and loved Roland. It's been four years now since he passed, and not everyone we meet knows him anymore.

Somebody wrote this the next day...

Sent: Sunday, September 21, 2008 1:04 PM

Lisa,
,,, I live in Ramsey, MN.
On Saturday, I was at the meeting in Wahkon, MN and heard you speak. You did a marvelous job. I wanted to talk to you but had to leave right before lunch and couldn't.
I will donate some $ online at your website, but not that I can afford much. But, the work you folks do is wonderful. I don't think anyone there knew of the issues you brought up. It is disgusting and heart breaking. Hopefully, you folks can make a difference and help the kids out.