One River, Two Canoes: Peace and Respect in Indian Child Welfare

Advocacy around the Indian Child Welfare Act reveals disparate perspectives. At this juncture, I’d like to turn from our differing views of particular cases toward conceptual issues, in the hopes of advancing mutual understanding, if not agreement.

In ICWA, Congress declared that it is the policy of the nation “to protect the best interests of Indian children” and “to promote the stability and security of Indian tribes and families.” Additional provisions recognize the “unique values of Indian culture” and the role of “Indian tribes” in child and family service programs.[1] In my view, ICWA properly protects both the best interests of children and tribal sovereignty; it reflects principles of constitutional law and human rights, as well as current philosophies and best practices with respect to individual and collective rights.

The essays of Mr. Sandefur and Mr. Olson appear to critique ICWA at its core; they do not like the fact that ICWA makes a child’s membership in a federally recognized Indian tribe relevant to child welfare proceedings. They seem to believe that if Indian children were free from ICWA’s provisions (e.g., notice to parents and tribes, active efforts toward reunification, opportunities for tribal court jurisdiction, and preferences for placements with extended families and tribal members), they would do better in the child welfare system. Underlying these points appears to be a deep concern for individual rights, which the critics believe to be best advanced through formal equality before the law.

From my work with Indian tribes, I see things differently. Indian children have not only a right to safety and security, health and wellbeing, family and home, but also to a tribal identity, culture, and citizenship. These are aspects of the child’s individual rights that are uniquely protected by the ways in which tribal and federal law work together through ICWA. Federal law guarantees the right of tribes to make their own laws and be governed by them. Among other things, tribes determine membership, domestic relations, and inheritance, thereby ensuring that individuals will be able to participate in tribal life and enjoy the benefits thereof. An approach of formal equality that would treat the Indian child just like any other child, without reference to tribal membership or tribal sovereignty, would deny Indian children fundamental rights that only the tribe can protect.

Thus I would argue that we should: (1) acknowledge that tribes are sovereign governments with the right to make their own laws in various realms including child welfare; (2) understand that ICWA’s affirmation of tribal sovereignty is one of the mechanisms by which the law promotes the best interests of Indian children; and (3) support collaborative efforts among state and tribal governments, and other parties, toward compliance with ICWA.

We clearly have a long way to go toward these goals. As I write, opposition to ICWA occurs in the form of lawsuits based on specious claims of race discrimination, fraudulent adoption practices skirting the law’s notification provisions, and media events exploiting small children as pawns in the cause. I believe these tactics do nothing to nurture the children at the heart of the struggle.

How do we get from our trenchant disagreement to mutual respect and perhaps even constructive collaboration? As a starting point, I offer the very first treaty between Indians and white settlers as a potential model. This essay then examines tribal worldviews and Indian history, constitutional law and human rights, political theory and local practice, toward what I see as the way forward in Indian child welfare.

 

An Historic Model with Contemporary Applications

In 1613, American Indians and Europeans made what is thought to be the first treaty between them. Meeting in present-day New York, representatives of the Haudenosaunee (or Iroquois) and Dutch governments agreed to three principles, namely, friendship, peace between peoples, and living in parallel forever.[2]

The Two-Row Wampum.

 

The Dutch recorded the agreement on paper with three silver chains.[3] According to tradition, iron chains would not do because iron rusts and breaks over time. Silver, by contrast, could be polished to a shine when treaty partners would meet again. These promises were eternal and would not break. The Haudenosaunee and the Dutch agreed to call this the Silver Covenant Chain of Friendship.

The Indians recorded the agreement in a belt of white and purple shells. “The belt has two purple rows running alongside each other representing two boats. One boat is the canoe with the Haudenosaunee way of life, laws, and people. The other is the Dutch ship with their laws, religion, and people in it. The boats will travel side by side down the river of life. Each nation will respect the ways of each other and will not interfere with the other.” The Haudenosaunee and Dutch agreed to call this the Two Row Wampum.

Why is the Two Row Wampum relevant now? What does it have to do with ICWA?

Today, the United States stands in the shoes of the European nations that negotiated historic treaties with Indian tribes. The Two Row Wampum is “a living treaty, a way that they have established for their people to live together in peace; that each nation will respect the ways of the other as they meet to discuss solutions to the issues that come before them.”

The Two Row Wampum is potentially helpful in a case like this where we all have to live under the same law but we have different beliefs about what is right. It offers a process (discussion of the issues), structure (parallel existence), and normative view (peace and mutual respect) for relationships between Indians and others. In the best case scenario, the Two Row Wampum could inspire a more peaceful, constructive approach to Indian child welfare that respects differences in worldview and promotes respect among peoples.

 

Worldview

In ICWA, Congress committed itself to protecting both “the best interests of Indian children” and “the stability and security of Indian tribes and families.” The law recognizes both the “unique values of Indian culture” and the role of “Indian tribes” in child and family service programs.[4]

Mr. Sandefur appears to believe that ICWA’s goals – (1) the protection of Indian children and (2) the protection of Indian tribes and families – are at odds with one another. To put it another way, he seems to argue that the protection of Indian children should trump the protection of Indian families and tribes. Mr. Olson largely concurs, though he argues that Indian parents also have legitimate individual rights in parenting their children.

In Mr. Sandefur’s view, Indian children are entitled to be treated like all other children, without reference to their membership in an Indian tribe. This is because he sees membership in an Indian tribe as an ethnic or racial heritage that should not keep Indian children from enjoying the full panoply of rights that all American citizens hold as individuals. Mr. Olson is “shocked at how little individual rights count for in the ICWA scheme.”

What is missing, I think, from these critiques is an appreciation for the way that the individual rights and personal identities of children and parents are valued in the context of tribal cultures, as well as how ICWA effectuates those values.                   

Mr. Sandefur claims, for example, that the Indian child of attenuated bloodline may not have any cultural connections, leaving only what he sees as a racial link to justify ICWA’s application. These claims appear to be based on his understanding of Indian identity as based on blood quantum, genetics, race, and ethnicity. Mr. Olson complains that ICWA applies to people who have never lived on a reservation. In my view, these critiques are based on are western constructs that infiltrated, but never really colonized, Indian Country. 

Consider the affiliations that do have meaning in tribal communities. In some communities, a child is born into a clan. For Cherokees, the clans are Wolf, Bird, Paint, Deer, Long Hair, Wild Potato, and Blue. Navajo clans are too numerous to list here. For other tribes, it’s societies, towns, villages, communities. It may be a single mom and her son in rural Wyoming or a stepfather and his daughter in New York City. These individuals may indeed live far from reservations (and of course not all tribes have reservations), in part because of the forced relocations imposed on Indians over hundreds of years. But these are Indian children and parents, related to Indian families and tribes, through religion and culture, politics and law.

The Indian child is not a blank slate. She is never a fraction of anything. She is Navajo or Hopi, Odawa or Cherokee, born into a fabric of spiritual life, a lineage of cultural practice, a place of individual power and of collective responsibility to the whole. One or two or three generations later — even if her mother, grandmother, and great-grandmother were themselves relocated or adopted — today the Indian child is protected in her personal identity, family life, and tribal citizenship by ICWA.[5]

Make no mistake: tribal cultures contain powerful expressions of individual rights.[6] Among the Hopi and Zuni, for example, “there is a strong belief that adult individuals are ultimately free to act as they see fit and are not to be judged by other humans for their actions. In Hopi, this respect for individual freedom is expressed by the phrase, ‘Pi um pi’ or ‘it’s up to you.’” And yet these individual rights are understood and experienced in the context of collective rights. Individual and community are balanced. And so a respect for individualism exists alongside the “obligations and duties toward one’s kin … necessary for the proper order of Hopi or Zuni society.” The Navajo tribe holds a core value that “no one and no institution has the privilege to interfere with individual action unless it causes an injury to another or the group.” Religion, speech, and parenthood are all construed in this way, to recognize individual rights in the context of collective responsibilities.

This is, in fact, the way it works in Indian Country. Whereas some strands of western European philosophy prioritize the individual man in his quest for rational autonomy over body, home, and property, American Indian worldviews typically value each individual in the embrace of family, tribe, and landscape, all maintaining an interdependent relationship with the natural world through prayer and ritual, history and relationship. These traditional values are expressed in tribal constitutions and codes, as well as the Indian Civil Rights Act of 1968, a federal statute that ensures tribal courts will respect individual rights, including speech, equality, and due process, while also fostering collective rights to determine membership, practice religion, exercise jurisdiction.[7]

It is unfortunate if ICWA’s critics have not seen the beauty and resilience of Indian Country. To spend time at one of the Southwestern pueblo feasts, or Oklahoma stomp grounds, or New England powwows is to experience the sheer joy of a culture and a people who have survived genocide. Indian people may be poor (although increasingly they are not). They may not have Ph.D.’s in child psychology (although increasingly they do). But to live in an Indian community is to be connected to family, land, tradition, and culture. It is to grow up with one’s personal identity, autonomy, and birthright as an Indian person. These are individual rights just as surely as any others.

There is also pain and heartache in Indian Country. Mssrs. Sandefur and Olson are correct that there are Indian children – in cities, towns, and reservations around the country – suffering from abuse and neglect, in families that have withered from generations of poverty and dislocation caused by the misguided policies described above. Tribal government is uniquely situated to have expertise on these problems and uniquely able to bring tribal culture to bear on solutions for Indian children and families. Tribes offer culturally sensitive foster care and adoptive family services, health care for pregnant women and children, and education from pre-school through university and graduate studies. Tribal courts have the time, expertise, and resources to address child welfare in ways that recognize the kinship bonds, the issues of language, religion, and culture, and the economic realities of Indian families. Urban Indian organizations have cultural revitalization programs to keep kids in school while addressing their vulnerability to gangs and human trafficking. Domestic violence, substance abuse, and suicide prevention initiatives across Indian Country are designed in significant part to strengthen and heal tribal families and allow parents and other caregivers to recover their roles in raising children.

These stories, perhaps, not do not capture headlines in the ways that certain cases have. Nevertheless, they are stories of the ways in which Indian tribes protect the welfare of children, and how in some cases they bring special resources and perspectives that might be not be available to state court judges, child and family service workers, and so on. Why would we want to deny Indian children the benefit of these programs by diminishing the force and effect of ICWA?

 

Individual v. Collective Rights: Or How about Legal Pluralism Instead?

The current assault on ICWA, while poorly informed, does not come as a huge surprise. History suggests that each time Indian tribes recover any shred of collective self-determination, reformers intervene to say that now is the time for individual rights, American style, in Indian Country.

We’ve heard these arguments before: Indians would be much better off if their rights to casino gaming were abrogated, if their land could be sold without restriction, and if their children could be adopted on the open market. If only Indians would let go of their culture, their lands, their language, religion, and children, they would be free!

And we know how the story unfolds: These arguments catch the ear of policy makers, and legal reform totally divorced from the collective nature of Indian culture is imposed on Indian people, against their wishes but somehow for their own benefit. And then, when push comes to shove, the courts ultimately recognize only a watered down version of individual rights. Individually and collectively, Indian people suffer.

Consider religion. In the 19th century, the federal government outlawed Indian religions, such as the sun dance, and enforced these laws by putting Indians in jail and denying them food. In 1890, the United States army ratcheted up the punishment, and shot and killed 200 Lakota people, as they prayed, in the Ghost Dance. The Indian Commissioner explained he “had no intention of interfering with the Indian’s personal liberty.” These measures were “meant to remove a badge of servitude to savage ways and traditions which are effectual barriers to the uplifting of the race.”[8] One hundred years later, in 1988 and 1990, the Supreme Could held the federal government could destroy Indian sacred sites[9] and state governments could outlaw Indian sacraments[10] without violating the First Amendment. These decisions are the law of the land to this very day. Is this how we envision religious freedom in the United States?

Consider land. After the policies of Indian removal and reservations failed to destroy Indian culture altogether, the United States, under pressure from individual states and white settlers, announced the “allotment” of tribal lands. As President Roosevelt said, allotment was to act as a “mighty pulverizing machine intended to break up the tribal mass.”[11] It was pitched as a policy that would “free” Indians by “giving” them the “right” to sell their property and join mainstream culture. What really happened was that Indians lost 90 million acres of land between 1887 and 1934.[12] The Supreme Court held in 1903 that these losses were not reviewable by the courts.[13] Then in 1955, the Court held that Alaska – yes just about all of the Native land in Alaska, to which title had never been extinguished and on which Native people were still living – was not compensable under the 5th Amendment.[14] These decisions, too, remain the law of the land. Is this how we envision property rights in the United States?

And consider children. The worst, saddest, most tragic example of the imposition of a radical model of individual “rights” on Indian communities. As I wrote in my previous essay, the federal and state governments, as well as adoption agencies, churches, and schools, all have a very long history of removing Indians from their families, for their own benefit. The prevailing policy from the late 1800’s until recently, or maybe even through today, was to “Kill the Indian and Save the Man.” In the decade when I was born, fully 1 out of every 4 Indian children was removed from his or her family. Congress found that many such removals were out of cultural ignorance, not because of neglect or abuse. It also found that the ramifications for individual Indian children were horrible. My earlier essay cited to the statistics about the psychological harms, drug abuse, and suicide rates of Indian adoptees during this period, and the traumatic effects on parents and siblings. Is this how we envision family rights in the United States?

ICWA presents a better way forward. It is a classic legislative compromise. The law respects the individual and collective rights of Indian children, parents, and tribes. It respects tribal and state court jurisdiction. It applies equally to mothers and fathers. ICWA respects the best interests of children and tribal self-determination. And so on.

This is not a radical view of the world, either in the mutual recognition of individual and collective rights, or in the concept that tribes maintain legal systems differing in some ways from the federal and state law systems around them. Indeed, the U.S. Constitution, alongside its very robust commitment to individual rights, also recognizes tribal governments in the Commerce and Treaty Clauses. As “domestic dependent nations,” whose existence pre-dates the formation of the United States, and whose political relationship with the federal government, through treaties and the Constitution, is a part of our nation’s political structure, Indian tribes are somewhat “exceptional” entities in American public law.[15]

But this situation is not exceptional when we cast our gaze around the globe. The United Nations Declaration on the Rights of Indigenous Peoples, endorsed by the United States and 143 other nations, recognizes both the individual and collective rights of indigenous peoples, including children’s rights to family and identity, and tribes’ rights to self-government and self-determination.[16] All in all, our approach to Indian Affairs, informed by constitutional law and human rights, is not unlike what the political philosopher John Rawls called “reasonable pluralism.”[17] This is a practice in which nations of the world respect “peoples” within their borders, including peoples with “reasonable” morals, religion, and philosophies, even if their laws or practices depart from the liberal tradition in certain ways. As societies grow more complex, reasonable pluralism is one way to manage differences within nations, engendering mutual respect and self-determination, rather than formal hegemony or forced assimilation.[18]

To be clear, this is not “separate but equal” as applied to Indians. As a formal matter, all of the essayists have acknowledged that the status of Indian tribes is political, and not racial, pursuant to the Constitution and many Supreme Court decisions.[19] When Congress legislates in Indian Affairs, as it has through an entire Title of the United States Code, these laws are subject not to strict scrutiny as they would be in the case of race-based legislation, but rather “rational basis” review to determine whether Congress has rationally upheld its trust duties to tribes. More practically, the current federal policy of “tribal self-determination” requires that federal Indian laws must be made in consultation with tribal governments, a practice endorsed by Republicans and Democrats alike. Congress consulted with tribes when it enacted ICWA and the Bureau of Indian Affairs did the same when it recently promulgated ICWA regulations. This is not about a regime imposed on Indians without their participation; it is about complying with a law that tribal governments lobbied for and are now trying to implement with federal and state cooperation.

 

Limiting Principles

Finally, the law contains several limiting principles that, if understood, should assuage some of the concerns about its reach and its protection for individual rights. These limits are found in ICWA itself as well as in the broader body of federal Indian law.

First and foremost, whatever the merits of arguments about transracial adoption, it is quite clear that ICWA does not open the floodgates to claims by racial minorities. Pursuant to Section 1903, the law applies only to “federally recognized tribes,” meaning those tribes that have a political relationship with the United States through treaties and statutes. The Supreme Court has clearly held that legislation based on Indian status is political and not racial.[20] ICWA is not about disparate treatment based on race. Indian tribes are distinguishable from other minority groups because they are governments that pre-date the United States, maintain a formal political relationship with the United States through treaties and statutes, and exercise inherent jurisdiction over reserved territories.

Additionally, while critics have suggested that ICWA’s coverage is so broad such that anyone with a tiny smidgen of Indian blood, a faint genetic marker, might fall under its net, that’s not right. As I suggested above, most Indian people do not typically equate blood or genetics with cultural or political affiliation. The attacks based on blood quantum or generational distance are truly meaningless from a tribal perspective.

Even more pragmatically, ICWA’s definition of “Indian child” is significantly limited. Section 1903 defines an “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” To put this in perspective, the last census revealed 800,000 people with Cherokee heritage, but at most 325,000 are enrolled members of one of the three Cherokee tribes – and of this an even smaller number of Cherokees are minor children who qualify as an “Indian child.” Like all laws, ICWA might appear to be overbroad or under inclusive at the margins, but it clearly applies to a limited subset of people, determined by well-established practices determining membership in a federally recognized tribe. Stated another way, ICWA does not apply to all children who may have some Indian heritage; it is much more limited than that.

Jurisdiction—or the right to have a child welfare case heard in tribal court—is similarly limited under ICWA. Under basic principles of federal Indian law, children and families who live on the reservation are subject to the jurisdiction of the tribal court, not the state. For children and families who live off the reservation, ICWA gives the tribe and the state concurrent jurisdiction over child welfare matters. Pursuant to Section 1911, either parent can veto a transfer to tribal court, and the state court can also find good cause to deny such transfers. In short, a finding that ICWA applies to a certain cases does not necessarily mean the family will end up in tribal court.

With respect to individual rights, ICWA’s Section 1914 gives an Indian child the right to bring his or her own lawsuit to invalidate a foster care placement or parental rights termination on grounds that it was unlawful. As lawyers for Indian children like to point out, this is a provision that can help to assert the child’s own voice, identity, and interests vis à vis parents, tribes, and others. In this and other provisions, ICWA has built in protections for the individual rights of children (and parents for that matter).

With respect to the critique that ICWA creates a second-tier legal regime for Indians, note that Section 1922 provides that in instances where state law offers higher protections to parents of Indian children, the state law must apply. Generally, however, most state laws provide lower protections to those parents, which is one reason ICWA is considered a gold standard in child welfare. In this regard, ICWA stimulates a race to the top, encouraging states and tribes to protect the individual rights of parents.

Finally, if critics are concerned about individual rights in tribal courts they should know that the Indian Civil Rights Act of 1968 requires that all branches of tribal government recognize both individual rights, like speech, property, and due process, while also protecting the tribe’s rights to determine membership, proscribe inheritance rules, and assert jurisdiction. As in the aftermath of Holyfield v. Mississippi Choctaw, tribal courts are empowered to affirm placements with non-Indians when they determine it to be in the best interests of the child.[21] To state this most clearly, ICWA does not require courts to place Indian children with Indian families if the best interests determination dictates otherwise.

 

An Invitation

In all of these ways, ICWA effectuates an eminently reasonable view of the world consistent with the Two Row Wampum in which indigenous peoples and newcomers to this continent respect one another, and offer friendship and support, without trying to steer one another’s canoe. In this spirit, I would like to invite an approach of mutual respect, non-interference, and peace into the current conversation about Indian child welfare. Here are some examples to build on.

First, the National Council of Juvenile and Family Court Judges has called on its members to comply with ICWA and the new regulations. This, in and of itself, is a major step from contestation to collaboration. Second, the organization holds trainings and produces materials regarding compliance and has started to hold observations so that judges can learn from one another. These sessions have revealed several contrasts. As Professor Fletcher’s latest essay suggests, tribal courts, unlike state courts, usually gather all family members in front of them, allow children to speak (whether formally or informally, in an age appropriate way), and make sure everyone there understands the proceedings. Tribal court judges are able to craft approaches to child welfare that take into account families’ personal, economic, and religious needs. Interestingly, state judges have expressed admiration and even envy about the ways in which the tribal court judges conduct child welfare proceedings, suggesting that there is room for mutual respect and information exchange among individuals who may not be natural allies.

On the flip side, some tribal governments are working with their state counterparts on effective ways to license and regulate foster families so as to ensure child safety. Tribes have been encouraged to publish and make readily available their constitutions, codes, and decisions so that families and lawyers in their systems, whether Indian or non-Indian, will understand the relevant tribal law. Tribes and Indian organizations understand that, given the realities of urban Indian populations and the scarcity of Indian foster and adoptive placements, many children will be placed in non-Indian families. They have begun to participate in “cultural connectedness agreements,” inviting foster and adoptive families to come to Indian Country, to keep their children invested in ceremonies and language, and to know their extended Indian families.

These best practices, often produced in discussions among people who work on the frontlines of child welfare, honor the foundational principles of the child’s best interests and tribal sovereignty, and promote mutual education among states and tribes toward improving Indian child welfare.

For people who are not lawyers or family service professionals, there are still additional ways to care for Indian children. First, those who wish to become adoptive or foster parents should work only with tribes and agencies that comply with the law, including ICWA. Those who wish to support Indian children without becoming parents can consider other avenues. Locally, volunteer at tribal Head Starts, donate to scholarship programs, or buy school supplies. Nationally, look to foundations and organizations devoted to Indian children. On a personal level, individuals can learn more about the history of Indian child welfare and open their hearts toward healing, restoration, and recovery. Check out where the political candidates stand on Indian issues and visit Indian Country to get to know its people and places. Support Indian children while respecting tribal sovereignty. The invitation is open.

 

Conclusion

The legal scholar and theologian Vine Deloria, Jr., once said, in characteristically provocative fashion:

Consider the history of America closely. Never has America lost a war. When engaged in warfare the United States has always applied the principle of overkill and mercilessly stamped its opposition into the dust…. But name, if you can, the last peace the United States won. Victory yes, but this country has never made a successful peace because peace requires exchanging ideas, concepts, thoughts, and recognizing the fact that two distinct systems of life can exist together without conflict.[22]

To many in Indian Country, the current assault on ICWA feels like a war waged on tribes by targeting the most vulnerable among them. The rubric is one of concern for individual rights that seems to ignore the ways in which tribes already respect and honor both individual and collective rights. The current attacks are unfortunate because, in enacting ICWA, Congress made significant progress toward recognizing that two distinct systems of life can exist together without conflict.

Inspired by the resilience of our ancestors and hope for our children’s futures, I hope we can renew a vision for peace and healing in Indian child welfare. One river, two canoes.