Too often, lawyers become desensitized to the horrors and experiences we hear from our clients and each other. This can be especially true in Indian Country, where tragedies like the Trail of Tears are taught to children as the “land runs,” which celebrate genocide.[1] The modern discussions surrounding the Indian Child Welfare Act (ICWA) often fail to address the historical underpinnings of the countless broken promises made by the United States to the various tribes throughout the country.

The goal of this article is twofold. First, it will give some background information on why the ICWA came to exist by providing historical context that is not often discussed when the ICWA is being litigated. Second, it will hopefully encourage readers to seek other sources of information and continue to self-educate themselves on this topic and its historical implications. Let this article be the beginning and not the end of your education on this crucial topic, especially here in Oklahoma.

THE FIRST CHILDREN REMOVED: BOARDING SCHOOLS

The true first “removal” period would accurately be the era often referred to as the Trail of Tears. Following that period, by the 1870s, federal policy regarding the tribes was assimilation. This attempt to destroy tribal identities peaked around 1879 with the introduction of boarding schools. The Carlisle Indian Industrial School in Pennsylvania opened that year and began enrolling students. The initial head of the school, Capt. Richard Pratt, summarized the school’s mission as “all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.”[2] The school “became the model for 408 similar federal institutions nationwide.”[3]

To quash any resistance, Congress and the enforcers of this federal policy withheld rations, furnishings and funding from families and tribes that would not surrender their children. According to the Bureau of Indian Affairs (BIA) records, when economic oppression was not enough, federal officials resorted to abduction.[4] According to an official report in 1886, federal officers would “visit [Indian] camps unexpectedly with a detachment of [officers] and seize such children as were proper and take them away to school, willing or unwilling.”[5] These officials even described this act as chasing and capturing the children like “so many wild rabbits.”[6]

While in attendance at these boarding schools, such as Carlisle, the practices to rid the world of Indians included but were not limited to:

• Changing the children’s names to English names
• Cutting the children’s hair
• Confiscating traditional clothing and regalia
• Prohibiting the use of any language other than English
• Prohibiting cultural and religious practices
• Forcing Christianity onto the children
• Separating the children from other children in their family and tribe[7]

To enforce these policies and practices, the schools would:

• Whip and lash the children
• Withhold food from the children
• Place the children in solitary confinement[8]

“Even compliant students faced ‘[r]ampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care.’”[9] While repugnant to modern sensibilities, this is rarely acknowledged when addressing issues surrounding the ICWA.

Serving injury with insult, 95% of the funding for these schools came from “Indian trust fund monies” raised by selling Indian land.[10] The schools would supplement that funding by using what has been called the “outing system,”[11] which involved sending the children to live with white families over the “summer break.” The children would work on the farms and do household chores for the families. In exchange, the families would compensate the schools.[12]

In review of this brief explanation of the shameful history behind boarding schools and policies, it is hard to see these schools as anything other than prisons for children. In 1928, the Meriam Report investigated many of these schools and determined they provided well below adequate care and should be shut down.[13] In 1971, 17% of all school-age Indian children were still held in boarding schools.[14]

THE SECOND REMOVAL: FOSTER HOMES AND ADOPTIONS

The forcible removal of Indian children evolved from the boarding school era. This time, instead of federal officials, it was the policies and practices of state and local officials. The prevailing belief was that a reservation was an unsuitable environment to raise children. The proposed “solution” was to take all school-age children out of Indian Country and allow “civilized” people to raise them.[15]

In other words, off-reservation foster care and non-Indian home adoptions became a prevailing practice. The process for these foster care placements and adoptions included:

• No legal counsel for the children or their parents
• No courtroom or formal legal setting
• The threat of or actual withholding of welfare benefits
• Fear of jail or imprisonment
• Abduction[16]

In 1958, the BIA and the Child Welfare League of America established the Indian Adoption Project, which emphasized adoption into non-Indian homes.[17] A 1969 study by the Association on American Indian Affairs (AAIA) showed that the rates of adoption and foster care placement of Indian children were higher than those of non-Indian children.[18] But the rates varied from state to state. In Washington, the adoption of Indian children was 19 times higher than the adoption of other children versus 1.3 times higher in Arizona.[19] Foster care placement for Indian children was 15.7 times higher than for other children in South Dakota while 2.6 times higher in Arizona.[20] It is important to note that Arizona still had high rates of Indian child placements in boarding schools at the time of the 1969 study.[21] Approximately 25-35% of Indian children had been separated from their families.[22]

This information was presented to Congress in 1974. These studies, along with testimony and the important need for legislation recognizing the cultural and traditional practices of Native Americans, led to the beginning stages of the ICWA. Some of the submitted statements provide shocking examples of the mistreatment and dehumanization these children endured. Norbert S. Hill, tribal manager of the Oneida Tribe of Indians of Wisconsin Inc., submitted a statement to Congress that included the following:

In Rural areas the county and state officials in a great many cases are nothing more than little Caesars who control the destiny of the less fortunate.

Some cases in point are as follows:

1. Two sisters, 15 and 16, were placed in a foster home where the foster father molested the 16 year old. She ran away several times and was then placed in a state institution. She remained there until she was eighteen, when she was released she had no one to turn to for guidance; again she ended up in a group home with an illegitimate child. The child was placed in a foster home in another state.
2. An incident was witnessed where a foster father was out late at night looking for a 12 year old girl with two dogs and two of his sons. She had according to him run away. His language in describing the girl was most despicable.
3. A grandmother who tried to keep her grandchild while her daughter was in a rehabilitation center had the child forcibly taken from her. The child was placed in a foster home for a fee.
4. A 10 day old baby was placed with relatives while the mother sought employment. After three months the Department of Social Services removed the baby. The people that had given care to the baby were told, “that because of the baby’s Indian background it would have to be placed in a second-rate home.”[23]

William Byler, then executive director of the AAIA, also provided a statement to the U.S. Senate. He explained that “the dynamics of Indian extended families are largely misunderstood” because an Indian child might have scores of relatives who are considered close relatives of the family and who can be relied upon for the care of the child. But social workers who are unfamiliar with the ways of Indian family life assume that leaving a child with someone outside the nuclear family is socially irresponsible and amounts to neglect, and they use that as grounds for terminating parental rights.[24] Mr. Byler presented several examples of the treatment of Indian children in adoptive and foster homes from various states. In South Dakota, the Department of Welfare “petitioned a State court to terminate the rights of a Sisseton-Wahpeton Sioux mother to one of her two children on the grounds that he was sometimes left with his sixty-nine-year-old great-grandmother.” Upon being questioned by the mother’s attorney, the social worker admitted that the four-year-old son was well cared for but simply added that the great-grandmother “is worried at times.”[25] In California, state officials attempted to use “poverty” as a standard for separating a Rosebud Sioux mother and child. The mother had arranged for the child to move with her aunt to California, and the mother would arrive a week later. By the time the mother had arrived, the child had been removed from her home and placed in a “pre-adoptive home” by California officials. California social workers claimed that even though they lacked any evidence that the mother was an unfit parent, “it was their belief that an Indian reservation is an unsuitable environment for a child and that the pre-adoptive parents were financially able to provide a home and way of life superior to the one furnished by the natural mother.”[26]

An Oglala Sioux mother was tricked by two Wisconsin women into signing adoption papers under the pretense that she was signing a permission slip.[27] A Paiute mother’s parental status was challenged in Nevada as a result of traffic violations.[28] A child, Ivan Brown, was spared from abduction when a sheriff and a social worker, along with prospective foster parents, “fled when the tribal chairman ran to get a camera to photograph their efforts to wrest him from his Indian guardian’s arms.”[29] Ivan Brown’s rescue from the local officials’ attempts to abduct him is just one of many examples provided to Congress by Mr. Byler. Other statements and testimony were provided to Congress between 1974 and 1978 on this issue.[30]

THUS, CONGRESS PASSED ICWA

While enacted in 1978, the research supporting and leading up to the ICWA began in the 1960s. That research, most of which has been entered into the legislative history of the ICWA, showed:

• One-third of American Indian/Alaskan Native (AI/AN) children were removed from their families and placed in foster care or adoptive homes.
• 85% of foster home placements and 90% of adoptions placed these children in non-Indian homes.
• Most of these children were removed not because of abuse or neglect but because of a lack of understanding of tribal customs and practices, stereotypes and biases held by individuals making key decisions in the child welfare and placement process.[31]

Following this study, Congress unanimously passed the ICWA in 1978.[32] The legislation passed was a result of the efforts of many tribal communities, the AAIA and the North American Indian Women’s Association.

Following the ICWA’s creation, two families from Michigan shared their stories. Eight-year-old Edward Walksnice was adopted by a Michigan couple in the Delta County Courthouse. The adoption was conducted, however, by a special session of the Northern Cheyenne Tribal Court, whom the Delta County Court granted use of their facilities. The Michigan couple filed for the adoption of Edward in state court, which prompted the Northern Cheyenne to challenge its jurisdiction. The adopting couple agreed to tribal court jurisdiction. The adoption was granted, but in accordance with that tribe’s customs, the natural family’s parental rights were not terminated, and both families continued to have a relationship with him. Following the hearing, the judge in the state court action dismissed the suit on the grounds that the state lacked jurisdiction.[33]

CONCLUSION

This summary of the history of the ICWA barely touches on the painful history leading up to the ICWA. The purpose of the ICWA is “to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture.”[34] Edward Walksnice’s story is just one example of how the ICWA can work in the best interests of children, families and tribes. The ICWA was designed to allow state and tribal officials to work together.[35]

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ABOUT THE AUTHOR

A member of the Choctaw Nation, J. Renley Dennis received his J.D. and master’s degree in Native American studies from OU in 2017. Mr. Dennis has been an attorney at Whitten Burrage since 2017 and works closely with tribal governments. He also works in the areas of insurance bad faith, personal injury, breach of contract, wrongful death and represents sovereign entities and arms of the state in litigation, including OU.

 

 

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ENDNOTES

[1] For example, see https://bit.ly/49DNKgm.

[2] Haaland v. Brackeen, 599 U.S. 255, 299, 143 S. Ct. 1609, 1642, 216 L. Ed. 2d 254 (2023) (Gorsuch, J. concurring).

[3] Id. at 299.

[4] Id.

[5] Id. at 300.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 301.

[11] Id.

[12] Id. at 301-302.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 304.

[17] Marc Mannes, “Factors and Events leading to the Passage of the Indian Child Welfare Act,” in A History of Child Welfare, 257 (1996).

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Indian Child Welfare Program, Committee on Interior and Insular Affairs, Senate Hearing April 8-9, 1974, pp. 477-480, Statement on Indian Child Welfare, Oneida Tribe of Indians of Wisconsin Inc. (April 3, 1974).

[24] Indian Child Welfare Program, Committee on Interior and Insular Affairs, Senate Hearing April 8-9, 1974, pp. 14-22, Statement of William Byler (April 8, 1974).

[25] Id. at 18-19.

[26] Id. at 19-20. (William Byler goes on to provide, “Ironically, tribes that were forced onto reservations at gunpoint and prohibited from leaving without a permit, are now being told that they live in a place unfit for raising children.”).

[27] Id. at 22.

[28] Id. at 22-23.

[29] Id. at 23.

[30] The Native America Rights Fund (NARF) has compiled the legislative history of the ICWA, including transcripts of various reports and Senate committee hearings, which are available at https://bit.ly/49CA3xX.

[31] Indian Child Welfare Program, Committee on Interior and Insular Affairs, Senate Hearing April 8-9, 1974, pp. 14-22, Statement of William Byler (April 8, 1974).

[32] See 25 U.S.C.A. §1901 et seq.

[33] Full article available at https://bit.ly/3V5hvSF.

[34] 25 U.S. C. §1902.

[35] For additional information, please see Haaland v. Brackeen, 599 U.S. 255, 297-333 (2023) (Gorsuch, J., concurring). Also, visit https://bit.ly/49CA3xX.