Volume 95 — No. 4 — April 2024 ALSO INSIDE: Legislative Update • Proposed Changes to ORPC • OBA Leadership Academy Law Day 2024 • Milestone Member Anniversaries • Annual Meeting • Mock Trial Indian Law
PLUS 55 Annual Meeting 60 Legislative Monitoring Committee 61 Law Day 2024 62 Mock Trial 66 OBA Leadership Academy 70 Milestone Member Anniversaries 74 Proposed Changes to the Oklahoma Rules of Professional Conduct THEME: Indian Law Editor: Sheila Southard FEATURES 6 The Last True People’s Court: Oklahoma’s Tribal Courts as an Access to Justice By Robert Don Gifford 16 The Unfortunate Path: The History Leading to the Indian Child Welfare Act By J. Renley Dennis 22 Bridging the Gap: A Systematic Guide to Tribal Code Drafting By Chloe M. Moyer 28 Fractionation or Consolidation? The Land Buy-Back Program for Tribal Nations (2012-2022) By Conor P. Cleary 34 Examining the Implications of Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin: How are Tribal Business Enterprises Impacted Under the Bankruptcy Code? By Mark A. Craige, Logan Hibbs and Michael McBride III 42 Farm Bill Implications in Indian Country By Carly Griffith Hotvedt, Kelli Case and Mallory Moore 50 The Model Tribal Energy Code: Energy Sovereignty for Native American Nations By Dr. Greg Guedel and Philip H. Viles Jr. DEPARTMENTS 4 From the President 84 From the Executive Director 86 Law Practice Tips 88 Ethics & Professional Responsibility 90 Board of Governors Actions 94 Oklahoma Bar Foundation News 98 Young Lawyers Division 100 For Your Information 102 Bench & Bar Briefs 104 In Memoriam 105 Editorial Calendar 112 The Back Page contents April 2024 • Vol. 95 • No. 4 PAGE 70 – Milestone Member Anniversaries PAGE 62 – Mock Trial On the Cover: “Fire” by Brent Learned from the Oklahoma Judicial Center Collection
THE OKLAHOMA BAR JOURNAL 4 | APRIL 2024 that our democracy, as conceived, endures.” The ABA stated that the theme is intended to encourage “Americans to participate in the 2024 elections by deepening their understanding of the electoral process; discussing issues in honest and civil ways; turning out to vote; and, finally, helping to move the country forward after free and fair elections.” When I think about this theme and how it relates to the practice of law, it brings to mind how lawyers help clients’ voices be heard. Attorneys act as the voice of their clients in a manner that is governed by rules and standards of professional conduct. Anyone can make a sign and picket a government building, and that action sometimes can be influential. Other methods, like filing a complaint (with the courts or an agency), are best done with the advice of counsel. We help our clients’ voices be heard every time we write a letter, file a document or speak on our clients’ behalf. That is an awesome responsibility and important to the function of our democratic republic. There are many Law Day activities in which you can participate this year. I have had the opportunity to visit the Law Day festivities of many county bar associations and to take part in the Ask A Lawyer event. I hope you are able to join one this year! MAY 1 IS LAW DAY, and the theme established by the American Bar Association is “Voices of Democracy.” According to the ABA, “Law Day provides an opportunity to understand how law and the legal process protect our liberty, strive to achieve justice, and contribute to the freedoms that all Americans share.” Nationally, Law Day was brought into being by Dwight D. Eisenhower through a proclamation in 1958. As you may know, Law Day is a deep tradition in Oklahoma. Hicks Epton, Wewoka attorney and 1953 OBA president, launched the OBA’s “Know Your Liberties – Know Your Courts Week” while head of the OBA’s public relations committee in 1951. This event was established with the purpose of educating the public about the legal system and celebrating the liberties we have as Americans. The event spread across the nation and evolved into what we now know as Law Day. Law Day and related activities help the OBA accomplish its goal to, in the public interest, encourage practices that will advance and improve the honor and dignity of the legal profession. You can learn more about this history on the OBA website at www.okbar.org/lawday. Law Day is a great opportunity for lawyers to show their pride in their profession. Regardless of the theme, it is important to step back from our daily projects and appreciate the role we play in society. Attorneys help guide clients through the legal process and make sure that the rule of law is understood and followed. Last year’s theme was “Cornerstones of Democracy,” and I like to think of attorneys as the brick masons responsible for laying the bricks, applying the mortar and repairing the cracks in our republic. Regarding this year’s theme, ABA President Mary Smith stated, “We must all use our voices to maintain our system of laws and to ensure Law Day From The President By Miles Pringle Miles Pringle is executive vice president and general counsel at The Bankers Bank in Oklahoma City. 405-848-8877 mpringle@tbb.bank
APRIL 2024 | 5 THE OKLAHOMA BAR JOURNAL JOURNAL STAFF JANET K. JOHNSON Editor-in-Chief janetj@okbar.org LORI RASMUSSEN Managing Editor lorir@okbar.org EMILY BUCHANAN HART Assistant Editor emilyh@okbar.org LAUREN RIMMER Advertising Manager advertising@okbar.org HAILEY BOYD Communications Specialist haileyb@okbar.org Volume 95 — No. 4 — April 2024 MILES PRINGLE, President, Oklahoma City; D. KENYON WILLIAMS JR., President-Elect, Sperry; AMBER PECKIO, Vice President, Tulsa; BRIAN T. HERMANSON, Immediate Past President, Ponca City; ANGELA AILLES BAHM, Oklahoma City; JOHN E. BARBUSH, Durant; S. SHEA BRACKEN, Edmond; DUSTIN E. CONNER, Enid; ALLYSON E. DOW, Norman; PHILIP D. HIXON, Tulsa; JANA L. KNOTT, El Reno; CHAD A. LOCKE, Muskogee; WILLIAM LADD OLDFIELD, Ponca City; TIMOTHY L. ROGERS, Tulsa; NICHOLAS E. THURMAN, Ada; JEFF D. TREVILLION, Oklahoma City; LAURA R. TALBERT, Chairperson, OBA Young Lawyers Division, Oklahoma City The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, except July and August, by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, Okla. and at additional mailing offices. Subscriptions $75 per year. Law students registered with the OBA and senior members may subscribe for $40; all active members included in dues. Single copies: $7.50 Postmaster Send address changes to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2024 Oklahoma Bar Association. Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. Advertisers are solely responsible for the content of their ads, and the OBA reserves the right to edit or reject any advertising copy for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Information about submissions can be found at www.okbar.org. BAR CENTER STAFF Janet K. Johnson, Executive Director; Gina L. Hendryx, General Counsel; Chris Brumit, Director of Administration; Jim Calloway, Director of Management Assistance Program; Beverly Petry Lewis, Administrator MCLE Commission; Gigi McCormick, Director of Educational Programs; Lori Rasmussen, Director of Communications; Richard Stevens, Ethics Counsel; Robbin Watson, Director of Information Technology; John Morris Williams, Executive Director Emeritus; Julie A. Bays, Practice Management Advisor; Loraine Dillinder Farabow, Jana Harris, Tracy Pierce Nester, Katherine Ogden, Steve Sullins, Assistant General Counsels Barbara Acosta, Taylor Anderson, Les Arnold, Gary Berger, Hailey Boyd, Craig Combs, Cheryl Corey, Nickie Day, Ben Douglas, Melody Florence, Johnny Marie Floyd, Matt Gayle, Emily Buchanan Hart, Suzi Hendrix, Jamie Jagosh, Debra Jenkins, Rhonda Langley, Durrel Lattimore, Brian Martin, Renee Montgomery, Jaycee Moseley, Lauren Rimmer, Tracy Sanders, Mark Schneidewent, Ben Stokes, Krystal Willis, Laura Willis & Roberta Yarbrough Oklahoma Bar Association 405-416-7000 Toll Free 800-522-8065 FAX 405-416-7001 Continuing Legal Education 405-416-7029 Ethics Counsel 405-416-7055 General Counsel 405-416-7007 Lawyers Helping Lawyers 800-364-7886 Mgmt. Assistance Program 405-416-7008 Mandatory CLE 405-416-7009 Board of Bar Examiners 405-416-7075 Oklahoma Bar Foundation 405-416-7070 www.okbar.org OFFICERS & BOARD OF GOVERNORS BOARD OF EDITORS MELISSA DELACERDA, Stillwater, Chair MARTHA RUPP CARTER, Tulsa NORMA G. COSSIO, Enid MELANIE WILSON RUGHANI, Oklahoma City SHEILA A. SOUTHARD, Ada EVAN A. TAYLOR, Norman ROY TUCKER, Muskogee MAGDALENA A. WAY, El Reno DAVID E. YOUNGBLOOD, Atoka
APRIL 2024 | 7 THE OKLAHOMA BAR JOURNAL Indian Law Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. The Last True People’s Court: Oklahoma’s Tribal Courts as an Access to Justice By Robert Don Gifford “Today, in the United States, we have three types of sovereign entities – the Federal government, the States, and the Indian tribes. Each of the three sovereigns has its own judicial system, and each plays an important role in the administration of justice in this country.” – Justice Sandra Day O’Connor1 Native American tribes2 are one of three sovereigns expressly described in the United States Constitution: the states, federal government and tribes.3 Since the Indigenous nations do not fall within the definition of a state, they are viewed, in the words of Justice John Marshall, as “domestic dependent nations.”4 In turn, these sovereign nations and their “tribal courts” hold a unique place in Oklahoma’s judicial landscape. With 574 federally recognized Native American tribal governments in the United States, there are 39 of these “third sovereigns” in Oklahoma, which also happens to have one of the largest Native American populations (16%) in the U.S.5 Of the 39 Oklahoma tribes, 28 of them fully exercise their sovereignty by operating their own independent tribal court systems.6 The remaining Oklahoma tribes7 rely on the Bureau of Indian Affairs’ judicial system of the Courts of Indian Offenses (CFR Courts).8 These “third sovereign” courts are more than just legal institutions. They each are a unique and independent cross-section of a tribe’s unique culture that still operate within the “rule of law.” Because of the large number of tribal courts, many lawyers are surprised to discover the large number of both civil and criminal cases resolved outside of the state district courts.9 THE ORIGINS AND EVOLUTION OF TRIBAL COURTS “Tribal courts systems have become increasingly sophisticated and resemble in many respects their state counterparts.” – Oliphant v. Suquamish Indian Tribe10 After the removal of many tribes from their homelands during the 1830s through the 1840s, then again during post-Civil War Reconstruction and President Andrew Jackson’s forced removal policy, many tribes were forced into the “Indian territory” of what was to become Oklahoma.11 The “Five Tribes,” formerly known as the “Five Civilized Tribes,”12 established their own legal systems in the 1880s.13 In the western part of the territory that was to become Oklahoma, the federal government established the Court of Indian Offenses in 1886. As a part of federal policy, many tribal courts ceased to operate early into the 20th century.14 Oklahoma’s tribal courts, as well as those throughout the United States, have one foot in Opposite page: The Iowa Tribe of Oklahoma sign in Perkins. Photo courtesy of the author.
THE OKLAHOMA BAR JOURNAL 8 | APRIL 2024 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. the historical culture of the tribe and the other in a modern legal system that any attorney would recognize.15 Many are surprised to learn that Native American tribal courts predate European contact,16 with origins rooted in the customs and traditions that maintained order within each of the Indigenous tribes of North America.17 One notable pre-statehood example is the Cherokee Nation.18 By the 1830s, the Cherokees of Oklahoma had nine judicial districts with juries, appellate courts and a supreme court.19 A review of these tribal cases demonstrated that most defendants tried were acquitted of the charges, with the most notable being the 1840 murder trial of Archilla Smith, a signer of the Treaty of New Echota, and Jesse Bushyhead, who both were defended by Stand Watie.20 As a result of the enactment of the Indian Reorganization Act of 1934,21 the Oklahoma Indian Welfare Act22 and subsequent federal laws, such as the Violence Against Women Act23 and the Tribal Law and Order Act,24 tribes were allowed to enact their own tribal codes and set up their own judicial systems.25 The Indian SelfDetermination Act of 197526 gave tribes the ability to provide for their own courts through federal grants and contracts. Many tribes have adopted their own legal codes that include cultural history and contemporary law.27 THE RISE OF TRIBAL COURTS IN OKLAHOMA “Tribal courts are the last remains of a true ‘People’s Court’ for any litigant.” – Judge Lisa Otipoby (Comanche), district judge of the Muscogee (Creek) Nation Tribal Court “Four minutes to Wapner,”28 – Dustin Hoffman as Raymond Babbitt29 District courts in Oklahoma routinely heard civil matters in cases involving Native Americans.30 However, when 49 of Oklahoma’s 77 counties were returned to “reservation” status after the U.S. Supreme Court’s opinion in McGirt v. Oklahoma – discussing the Muscogee (Creek) Reservation31 and how its progeny of cases32 affected other tribes – the question of where cases must and could be heard in both criminal and civil matters became a hot topic that continues today. From 1950 until about 1977, Oklahoma exercised all aspects of civil and criminal jurisdiction over The bench at the Kaw Nation District Court in Kaw City. Photo courtesy of the author.
APRIL 2024 | 9 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. tribal lands until a federal district court case in the Western District of Oklahoma, United States v. Littlechief, found that the state of Oklahoma could not prosecute an Indian for a crime on a “trust allotment.”33 In 1979, the state of Oklahoma lost another jurisdictional battle when the state appellate court found the Chilocco Indian School34 in Kay County to be a “dependent Indian community” and, thus, in “Indian Country” with no state criminal jurisdiction.35 As tribal courts are now more prominent since McGirt, they are, as they always have been, an important part of the legal system in Oklahoma. As with any attorney venturing into a new courthouse in a different county, it takes the willingness to learn and adapt. With 39 tribes in Oklahoma, many practitioners are soon surprised at the number of divorces, custody determinations,36 adoptions, paternity determinations, child support orders, guardianships and name changes adjudicated daily within the boundaries of Oklahoma and outside of its state court system. Since McGirt, there have been many questions about which courts have jurisdiction in not only criminal matters but civil matters as well. Applicable tribal laws and federal regulations govern the Courts of Indian Offenses,37 while tribal courts are governed by applicable federal laws38 and tribal constitutional, statutory, common and administrative laws. SOURCES OF LAW WITHIN THE INDIAN NATIONS “Among the Indians there have been no written laws. Customs handed down from generation to generation have been the only laws to guide them.” – George Copway (Kah-ge-ga-bowh), Ojibwa chief39 “Watch out for bad medicine, though. Yeah, wear socks. Medicine comes up through your feet.” – Reservation Dogs40 A practitioner who’s new to the tribal court system should be aware that both tribal district (trial) courts and appellate courts may vary from tribe to tribe in their structure and procedure.41 Notably, there is not a single tribal appellate court that serves as a “Supreme Court” to all the tribal district courts. Tribal laws vary from tribe to tribe and may be based on a tribe’s constitution, code of laws, resolutions and ordinances. Surprising to some, the U.S. Constitution and Oklahoma Constitution do not necessarily apply within tribes;42 however, that does not mean litigants are without fundamental protections in tribal court. First, in 1968, the U.S. Congress passed the Indian Civil Rights Act,43 which closely mirrors the Bill of Rights of 1791.44 Tribes are required to provide the ability “to petition for redress of grievances” and the basic protections of due process, freedom of speech, protection against self- incrimination and other fundamental rights.45 Additionally, many tribes have adopted substantive laws through their own legislative processes, which contain similar protections as those found in the Bill of Rights. Many of Oklahoma’s tribal courts also look to state or federal law and procedure to fill in any gaps as a matter of fairness and ease of tribal court practice for attorneys (and pro bono parties). Some tribes have tribal codes that direct if there is no tribal code addressing an issue to look to the federal or Oklahoma state code.46 In doing legal research, most tribal codes and sample forms are available online on a tribe’s The Muscogee (Creek) Nation District Court in Okmulgee. Photo courtesy of the author.
THE OKLAHOMA BAR JOURNAL 10 | APRIL 2024 website.47 Naturally, it would be advisable to always contact the tribal court clerk to ensure the latest codes are online. A practitioner should review not only tribal codes but the tribe’s constitution, ordinances, legislative research48 and “tribal resolutions” (as well as any local rules) before filing anything. Many tribal courts will also maintain physical fill-in-the-blank forms for pro se filers in matters of divorce, custody, guardianship or even protective orders. In addition to each of the tribes’ websites, other organizations – such as Oklahoma Indian Legal Services,49 Legal Aid Services of Oklahoma,50 the National Indian Law Library of the Native American Rights Fund,51 the Donald E. Pray Law Library at the OU College of Law 52 and the Chickasaw Nation Law Library at the OCU School of Law53 – maintain access to tribal codes and laws on their websites. Locating tribal court decisions, even those that may be precedential, might be difficult. Some tribal courts, such as the supreme courts for the Muscogee (Creek) Nation54 and the Cherokee Nation,55 keep many opinions and orders on their court website. While the online legal research database Lexis,56 at the time of this writing, offers tribal court opinions for only one Oklahoma tribe, the Muscogee (Creek) Nation, it does offer other opinions from the Crow Tribe, the Eastern Band of Cherokee and the Navajo that may be used for persuasion. Legal publisher Thomson Reuters offers West’s American Tribal Law Reporter (National Reporter System) in both hardbound volumes and through the Westlaw Precision research database (which also offers opinions from the Cherokee Nation and the Sac and Fox Nation).57 Notably, the Westlaw Precision database offers Oklahoma tribal court reports going back to 1978, which includes Oklahoma tribal court case law. JURISDICTION “Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority over their members and territories.” – Oklahoma Tax Commission v. Potawatomi Tribe58 “Tonto, you may yet have your revenge.” – Rennard Strickland59 The Oklahoma Constitution provides that “the [State] District Court shall have unlimited original jurisdiction of all justiciable matters.”60 While this statement of law is correct, the Oklahoma Constitution has traditionally had no applicability to tribal members residing within “Indian Country.”61 Because tribal court jurisdiction is a federal question, it is the federal courts that have the authority to determine whether a tribal court has jurisdiction in a particular case.62 Generally, states do not possess jurisdiction, and state law will not have effect in “Indian Country” (the federal codified term) except through a specific grant of jurisdiction under federal law.63 The jurisdictional framework is a complex flowchart of tribal law, federal law and state law, which becomes more complicated in cases involving non-tribal individuals on tribal land. Practitioners should note that tribal courts have jurisdiction over both civil and criminal cases that involve tribal members, even those who are members of other tribes,64 that occur within tribal lands and, in certain circumstances, over non-Natives who have significant contacts with the tribe.65 In Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. The bench at the Seminole Nation Tribal Court in Wewoka. Photo courtesy of the author.
APRIL 2024 | 11 THE OKLAHOMA BAR JOURNAL criminal matters, Congress gave the federal government exclusive authority to prosecute crimes that occurred in Indian Country when committed by or against Indians in 1885 through the Major Crimes Act.66 The definition of “Indian Country” is found at 18 U.S.C. §1151 and includes: 1) all land within the limits of any Indian reservation under the jurisdiction of the United States government, 2) “dependent Indian communities” and 3) all Indian allotments, the Indian titles to which have not been extinguished. Indian Country also includes land for which the title is held in trust by the U.S. for an individual Indian or Indian tribe.67 Prior to McGirt and its progeny68 restoring the reservation status to several tribes, Oklahoma’s “Indian Country” was generally described as a “checkerboard jurisdiction” and primarily found in the form of allotments or land held in trust by the federal government. Under the Violence Against Women Act,69 tribes can not only exercise civil jurisdiction over non-Natives for the purposes of protective orders but also limited criminal jurisdiction over them for violations of a protective order or crimes against Indian children. THE INDIAN CHILD WELFARE ACT “Can you see the wolves in this picture?” – Killers of the Flower Moon70 While the Indian Child Welfare Act (ICWA) 71 does not apply to tribal court proceedings, tribal courts do have presumptive jurisdiction in off-reservation custody proceedings72 over a Native child (of that specific tribe).73 The ICWA places certain procedural requirements in state court actions, as well as on the courts themselves before removing Native children from their homes (or terminating parental rights of Native parents).74 Transferring juvenile proceedings from state courts to tribal courts is clearly favored (absent parental objection); however, according to ICWA expert (and OBA member) C. Steven Hager,75 the tribal court systems “should carefully ... make a choice in each case that is in the best interest of the parents, the children, and the tribe.”76 BAR ADMISSIONS AND FINDING PENDING TRIBAL CASES “If you want to be successful, it is this simple. Know what you are doing, love what you are doing. And believe in what you are doing.” – Will Rogers, Cherokee citizen and “Oklahoma’s favorite son” As with other courts, most tribal courts require an attorney to be formally admitted to practice before the court. Many tribes’ bar applications will require a “letter of good standing” from the bar association, and some may only want a list of references. While most tribal courts do not require attorneys to be members of the Oklahoma Bar Association, they do generally require passage of some state bar exam. Most tribal bar applications are available on the tribal court’s website.77 Further, as with most courts, many tribal courts have rules as to attorney appearances to appear pro hac vice. It is worth noting that many tribes have provisions for non-attorney “lay advocates” to practice in those respective courts. In addition, while most Oklahoma attorneys routinely look online for pending state district court or Supreme Court cases on the Oklahoma State Court Network (OSCN)78 or through the On Demand Court Records System (ODCR),79 there is not a single online database for all tribal courts. While a few of Oklahoma’s tribes have made their daily court dockets available through the ODCR,80 most post their cases through their own court websites (e.g., the Cherokee,81 Choctaw82 and Muscogee (Creek) Nation83 courts offer the court records on their court websites). FULL FAITH AND CREDIT OR COMITY BETWEEN TRIBAL AND STATE COURTS “One of the finest things about being an Indian is that people are always interested in you and your ‘plight.’ Other groups have difficulties, predicaments, quandaries, problems or troubles. Traditionally we Indians have had a ‘plight.’” – Vine Deloria Jr.84 There may be some who are unfamiliar with the tribal court system who may view it with Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. The Kaw Nation Tribe’s dockets. Photo courtesy of the author.
THE OKLAHOMA BAR JOURNAL 12 | APRIL 2024 skepticism.85 As noted by OBA member and Arizona State University Sandra Day O’Connor College of Law Dean Stacy Leeds,86 in legal matters with non-Native litigants, there has historically always been some speculative concern of “fairness and objectivity of tribal justice systems.”87 Time has shown that such concerns of bias are simply unwarranted. Such claims are no greater than those made by any lawyer who believes they were “hometowned”88 while appearing for the first time in any given state district court in Oklahoma. For more than 30 years, Oklahoma has given “full faith and credit” to the treatment of tribal court orders.89 Oklahoma courts have long recognized the validity of marriages (and divorces) between tribal members even when those marriages (or divorces) would not be recognized under the laws of Oklahoma.90 Even prior to that legislation, Oklahoma, as many other state91 and federal92 courts, concluded the federal full faith and credit statute93 applies to tribal court judgments as judgments of “territorial courts.”94 Some examples of such recognition of tribal court decisions and orders include honoring child support orders,95 domestic violence protection orders96 and child custody orders.97 A federal circuit court, as well as at least one tribal court, have also found that the Parental Kidnapping Prevention Act98 mandates that both states and tribes honor the other’s custody orders.99 There are also obscure provisions of federal law that seem to mandate some state courts’ following of tribal orders.100 CONCLUSION “Though many non-Native Americans have learned very little about us, over time we have had to learn everything about them.” – Wilma Mankiller, chief of Cherokee Nation (1985-1995)101 In a state that derives its name from the Choctaw words “okla,” meaning “people,” and “homma” or “humma,” meaning “red,”102 with over 300,000 tribal members from various tribes within its boundaries, and throwing in the application of McGirt, an attorney should not exclude themselves from an active tribal court practice. While some attorneys may be hesitant to grow their practice into such an area because they are not tribal members themselves, the tribal court practitioners (including the judges) come from a variety of backgrounds, both Native and non-Native. Any attorney assisting a tribal member (or non-tribal member) has an opportunity to develop a needed and unique practice by stepping into tribal court. With these starting points, a diligent attorney can effectively represent a litigant in a tribal court system that is both fair and efficient and one that will be surprisingly familiar to the Oklahoma attorney. Oklahoma’s tribal courts stand as a testament to the rise of the 39 distinct tribal cultures in the state in serving the people of Oklahoma in the face of both historical and contemporary challenges.103 ABOUT THE AUTHOR Robert Don Gifford is a solo practitioner in Oklahoma City at Gifford Law PLLC with an emphasis on Native American law, criminal law, civil rights and military law, and he is currently one of the attorneys involved in the presidential commutation for Leonard Peltier. Mr. Gifford, a tribal member of the Cherokee Nation, is also a tribal court judge for the Seminole Nation, Iowa (Ioway) Tribe of Oklahoma, Kaw (Kanza) Nation, AbsenteeShawnee Tribe and Miami Tribe of Oklahoma, as well as a Comanche Nation Supreme Court justice. ENDNOTES 1. Sandra Day O’Connor, “Lessons from the Third Sovereign: Indian Tribal Courts,” 33 Tulsa L. J. 1, 1 (1997). 2. The terms “Native American,” “Indian,” “tribal member” and “Indigenous” are used interchangeably throughout this article. 3. See generally, Jack Blair, “Demanding a Voice in Our Own Best Interest: A Call for a Delegate of the Cherokee Nation to the United States House of Representatives,” 20 Am. Indian L. Rev. 225, 225-33 (1995). 4. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); United States v. Lara, 541 U.S. 193, 204-05 (2004); see also Jeffery W. Massey, “The Cherokee Chief vs. The SCOTUS,” The Briefcase, (publication of the Oklahoma County Bar Association), August 2023, p. 5 (Part I), and September 2023, p.6; available online at www.okcbar.org. 5. Ana I. Sánchez-Rivera, Paul Jacobs and Cody Spence, “A Look at the Largest American Indian and Alaska Native Tribes and Villages in the Nation, Tribal Areas and States,” Oct. 3, 2023, available at https://bit.ly/49PEWUE. 6. There are more than 250-300 tribal courts and more than 150 tribal appellate courts throughout the United States. See Gregory D. Smith, “Native American Tribal Appellate Courts: Underestimated and Overlooked,” 19 J. App. Prac. & Process 25, 25 (2018); see also Matthew L.M. Fletcher, “Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited,” 84 U. Colo. L. Rev. 59, 71 (2013). 7. The Eastern Shawnee, Modoc, Ottawa, Peoria and Seneca-Cayuga tribes each use the Miami Agency CFR Court (Eastern Oklahoma Region), while the Apache, Caddo, Fort Sill Apache, Otoe-Missouria and Wichita and Affiliated Tribe all use the CFR Courts at Anadarko and Red Rock (Southern Plains Region). See generally, “Court of Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
APRIL 2024 | 13 THE OKLAHOMA BAR JOURNAL Indian Offenses,” U.S. Department of Interior, at www.bia.gov/CFRCourts (last visited Jan. 8, 2024). 8. The “CFR Courts” are considered “legislative courts” as described by Justice John Marshall in American Ins. Co. v. 356 Bales of Cotton (Canter), 26 U.S. (1 Pet.) 511, 546 (1828). 9. Chadwick Smith and Stephanie Birdwell, Cherokee Courts: A Historical and Modern Perspective 17 (1993). 10. 435 U.S. 191, 211-12 (1978). 11. See generally, L. Susan Work, The Seminole Nation of Oklahoma: A Legal History 3 (University of Oklahoma Press, 2010). 12. See Stacy L. Leeds, “Defeat or Mixed Blessing? Tribal Sovereignty and the State of Sequoyah,” 43 Tulsa L. Rev. 5, 5 n.2 (2007) (using “Five Tribes” to refer to the Cherokee, Chickasaw, Choctaw, Muscogee (Creek) and Seminole nations). 13. Choctaw Nation v. Oklahoma, 397 U.S. 620, 625 (1970) (the court paid particular attention to the unique history of the Five Civilized Tribes, especially the provisions of their treaties, including the treaty with the Choctaw, Sept. 27, 1830, 7 Stat. 333-34, which noted “no part of the land granted to them shall ever be embraced in any Territory or State.” See id. at 625. In Montana v. United States, 450 U.S. 544 (1981), the court noted the “special historical origins of the Choctaw and Cherokee treaties” that gave those tribes greater property rights than those of other tribes. See id. at 555). 14. See discussion in Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439 (1989). 15. See Daniel L. Lowery, “Developing a Tribal Common Law Jurisprudence: The Navajo Experience,” 1969-1992, 18 Am. Indian L. Rev. 379, 381-87 (1993). 16. See Cohen’s Handbook of Federal Indian Law, (Nell Jessup Newton et al. eds., 2012), §4.01[1] [a] (remarking that most tribes had informal legal systems prior to contact with European nations). 17. See, e.g., Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court, (1975). 18. See generally, The Constitution and Laws of the Cherokee Nation: Passed at Tahlequah, Cherokee Nation, 1839-51, at 21-26 (1852). 19. Bethany R. Berger, “Power over this Unfortunate Race: Race, Politics and Indian Law in United States v. Rogers,” 45 Wm. & Mary L. Rev. 1957 (April 2004). 20. See generally John Howard Payne, Indian Justice (Grant Foreman ed., Univ. of Okla. Press 2002) (A 1840 Cherokee murder trial in Tahlequah of Archilla Smith for the slaying of John McIntosh with a knife at Tahlequah.). 21. 25 CFR §§416, et seq. 22. 25 CFR §503. 23. 42 U.S.C. §136. 24. 42 U.S.C. §305. 25. 25 CFR §11. 26. See Public Law 93-638; Title 25 U.S.C. §450, et seq. 27. Justin B. Richland, 2008. Arguing with Tradition: The Language of Law in Hopi Tribal Court; Chicago, IL: University of Chicago Press. 28. Judge Joseph A. Wapner (1919-2017), a former California Superior Court judge, was the first presiding judge of the reality court television show The People’s Court from 1981 to 1983. 29. Rain Man, United Artists, 1988. 30. Whitehorn v. Whitehorn, 170 Okl. 152, 36 P. 2d 943 (1934); Le Clair v. Calls Him, 106 Okl. 247, 233 P. 1087 (1925), (upholding district court’s order setting aside divorce decree). 31. The statutes that provided for allotment of tribal lands did not disestablish the Muscogee (Creek) Nation Reservation. See also Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017) for a review of the allotment legislation. 32. See McGirt v. Oklahoma, 591 U.S. _ (2020) (Muscogee (Creek) Nation); Bosse v. State, 2021 OK CR 30, 499 P.3d 771, cert. denied, 212 L. Ed. 2d 23, 142 S. Ct. 1136 (2022) (Chickasaw Nation); Hogner v. State, 2021 OK CR 4, 500 P.3d 629 (Cherokee Nation); Sizemore v. State, 2021 OK CR 6, 485 P.3d 867, cert. denied, 211 L. Ed. 2d 618, 142 S. Ct. 935 (2022) (Choctaw Nation); Grayson v. State, 2021 OK CR 8, 485 P.3d 250, cert. denied, 211 L. Ed. 2d 618, 142 S. Ct. 934 (2022) (Seminole Nation); State v. Lawhorn, 2021 OK CR 37, 499 P.3d 777 (Quapaw Nation); State v. Brester, 2023 OK CR 10, 531 P.3d 125 (Ottawa Nation, Peoria Nation and Miami Tribe of Oklahoma). 33. United States v. Littlechief, 573 P.2dd 264 (1977). 34. In 1880, at the end of the “Indian Wars,” the United States government created five original Indian boarding schools across the country (Carlisle, Haskell, Fort Simcoe, Chemawa and Chilocco). In 1882, Congress authorized an Indian school to be built in the Cherokee outlet near the southern boundary of Kansas and near the Ponca and Pawnee reservations (now Kay County). 22 Stat. 68, 85, ch. 163. Thereafter, on July 12, 1884, President Chester A. Arthur issued an executive order setting aside land for the Chilocco Indian Reserve. The school closed in 1980, and in a 1986 Act of Congress, the Kaw, Otoe-Missouria, Pawnee, Ponca and Tonkawa were given part of the school grounds as the “Council of Confederated Chilocco Tribes.” 35. C.M.G. v. State, 594 P.2d 798 (Okla. Crim. App.), cert. denied, 444 U.S. 992 (1979). 36. 25 USC §1903 (tribal court means a court with jurisdiction over child custody proceedings and that is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe or any other administrative body of a tribe vested with authority over child custody proceedings). 37. 25 C.F.R. §11.100, et seq. 38. Indian Civil Rights Act of 1968, 25 U.S.C. §§1301-1303. 39. George Copway, Indian Life and History, 1858, Boston, Albert Colby and Company; p.141. 40. FX Network, Season 2, Episode 5, 2022. 41. Eugene K. Bertman, “Tribal Appellate Courts: A Practical Guide to History and Practice,” 84 OBJ 2115 (2013). 42. See Oliphant v. Suquamish Tribe, 435 U. S. 191, 194, n. 3 (1978) (citing Talton v. Mayes, 163 U. S. 376 (1896)). 43. Indian Civil Rights Act of 1968, 25 U.S.C. 1301-1303. 44. See Michael J. Douma, “Symposium: The Origins and Iconization of the Bill of Rights: How the First Ten Amendments Became the Bill of Rights,” 15 Geo. J.L. & Pub. Pol’y 593 (“Although the general idea of a bill of rights was often associated with the first ten amendments, Americans in the late eighteenth and early nineteenth century did not use the term ‘the bill of rights’ and ‘the first ten amendments’ interchangeably, in a one-to-one correspondence.”). 45. 25 U.S.C. §1302. 46. Darla W. Jackson, “Caution – Slow Progress Ahead: Accessing and Researching Tribal Court Opinions,” 91 OBJ 48 (2020). 47. See, e.g, tribal court webpages for the: Seminole Nation (https://bit.ly/4aarKcW), Choctaw Nation (https://bit.ly/3Pgo6Gn), Chickasaw Nation (https://bit.ly/48ONt9c), Quapaw Nation (https://bit.ly/3VeyDFJ), Comanche Nation (https://bit.ly/3VkMhaa), Kaw Nation (https://bit.ly/48O3w7a) and Iowa Tribe of Oklahoma (https://bit.ly/4a6KdHg), (last visited Jan. 8, 2024). 48. Cherokee Nation Legislative Research Center, available online at https://bit.ly/3Txl6rF (last visited Dec. 5, 2023). 49. See http://tribalcodes.info/index.html (last visited Jan. 8, 2024). 50. See https://oklaw.org/issues/tribal-law (last visited Dec. 5, 2023). 51. See https://bit.ly/4c8jPhZ (last visited Dec. 5, 2023). 52. See https://thorpe.law.ou.edu (last visited Dec. 5, 2023). 53. See https://bit.ly/3VkMqKK (last visited Dec. 5, 2023). 54. See Supreme Court for the Muscogee (Creek) Nation homepage, https://bit.ly/3IydY7W (last visited Dec. 22, 2023). 55. See Cherokee Nation Judicial Branch homepage, https://bit.ly/3v3snGd (last visited Dec. 5, 2023). 56. See generally, LexisNexis or Lexis+ or Lexis+ AI at https://bit.ly/49ZaJ5g (last visited Jan. 8, 2024). 57. See https://1.next.westlaw.com (last visited Dec. 22, 2023). 58. 498 U.S. 505, 509 (1991). 59. Tonto’s Revenge (University of New Mexico Press, 1997). 60. See Article 7, Section 4. 61. Cf. Deo v. Parish, MA-2022-937 (Okla. Court of Crim. Appeals, Dec. 14, 2023). 62. Plains Commerce Bank v. Long Family Land and Cattle Co., Inc., 554 U.S. 316 (2008). 63. See Oklahoma v. Castro-Huerta, 597 U.S. _ (2022). 64. Williams v. Lee, 358 U.S. 217 (1959) (suggests state courts have no jurisdiction to grant divorces when both parties are Native and domiciled in Indian Country). 65. Montana v. United States, 450 U.S. 544 (1981), Dollar General Corporation v. Mississippi Band of Choctaw Indians, 579 U.S. 809 (2016). 66. 18 U.S.C. §1153. 67. Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991). 68. See endnote 32, supra. 69. 42 U.S.C. §136. 70. Paramount Pictures/Apple Studios, 2024. 71. See 25 U.S.C. §§1901-1963. See Ann Murray Haag, “The Indian Boarding School Era and Its Continuing Impact on Tribal Families and the Provision of Government Services,” 43 Tulsa L. Rev. 149, 149 (2007) (The ICWA was first enacted by Congress in 1978 to slow and reverse the historical treatment of Native children in their removal from their tribal homes.). 72. See 25 U.S.C. §1902 and Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, (1989) (explaining the substantive requirements of the ICWA) (Indian children should be placed in foster and adoptive homes, absent good cause to the contrary, which “reflect the unique values of Indian culture.”); see also 25 U.S.C. §1915 (procedure for placing Indian children in foster care and adoption). Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
THE OKLAHOMA BAR JOURNAL 14 | APRIL 2024 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 73. 25 U.S.C. §1903 (the ICWA defines an “Indian child” as “any unmarried person who is under age eighteen and is either 1) a member of an Indian tribe or 2) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”). 74. See 25 U.S.C. §1911(a) (restricting state court jurisdiction over Indian children domiciled on Indian reservations; requiring state courts to transfer jurisdiction over child custody proceedings involving non-reservation domiciled Indian children to tribal courts; and allowing Native American parents and tribes to intervene in state court proceedings); 25 U.S.C. §1912(a) (governing involuntary placements by state courts and requiring Indian tribes to receive notice of proceedings; requiring parents to be appointed counsel; and establishing the burden of proof and requisite evidentiary showings before a foster care placement or termination of parental rights can be accomplished in state court); 25 U.S.C. §1913(c) (governing the requirements for a voluntary placement of a Native child in foster care or voluntary termination of parental rights). 75. Until his untimely death, C. Steven Hager (1958-2021) served as the director of litigation at Oklahoma Indian Legal Services for more than 30 years, chief judge for the Kickapoo Tribe in Kansas and justice on the Kaw Nation Supreme Court and author of 24 editions of The Indian Child Welfare Act: Case and Analysis. 76. C. Steven Hager, “Transfer to Tribal Courts in Oklahoma under the Indian Child Welfare Act and Factors for the Tribal Court’s Consideration,” 81 OBJ 389 (2010). 77. See generally, Cherokee Nation Bar Association homepage, https://bit.ly/48P4uQv; Kaw Nation Bar Application, https://bit.ly/49NlDvc; (last visited Dec. 5, 2023). 78. See generally, www.oscn.net/v4 (last visited Jan. 8, 2024). 79. See generally, www1.odcr.com (last visited Dec. 22, 2023). 80. The tribal courts for the Chickasaw Nation, Quapaw Nation, Sac and Fox Nation and Wyandotte Nation all provide case file information via www1.odcr.com, but these tribal courts do not provide free access to the pleadings or documents entered as case entries on the docket. However, some images are available for a subscription fee. 81. Public Access Portal for the Cherokee Nation Tribal Court, https://bit.ly/4cd4mNK, (last visited Jan. 8, 2024). 82. Judicial Branch Case Records, https://bit.ly/4a68nBr (last visited Jan. 8, 2024). 83. Public Access Portal for the Muscogee (Creek) Nation District Court, https://bit.ly/3uYBPuy (last visited Jan. 8, 2024). 84. Custer Died for Your Sins (Macmillan, 1969). 85. Little Horn State Bank v. Crow Tribal Court, 690 F. Supp. 919 (D. Mont. 1988), vacated, 708 F. Supp 1561 (D. Mont. 1989) (“The Crow Tribal Court, acting as a sort of ‘kangaroo court,’ has made no pretense of due process or judicial integrity.”). 86. Stacy Leeds, dean of the Sandra Day O’Connor College of Law at Arizona State University; Cherokee Nation tribal member, appeals judge for the Hualapai Tribe in Arizona and the Rincon Band of Luiseno Indians in California. She has also previously served as dean at the University of Arkansas School of Law and as a justice for both the Cherokee Nation Supreme Court and the Kaw Nation Supreme Court. 87. Stacy L. Leeds, “[dis]Respecting the Role of Tribal Courts,” 42:3 Hum. Rts. 20, 20 (2017) (pointing out that this “lack of faith in tribal courts is typically limited to situations involving non-Indian litigants”). 88. Linda Karr O’Connor, “General Article: Best Legal Reference Books of 1995,” 88 Law Libr. J. 178 (Spring 1996) (“Don’t bother checking Black’s and Ballentine’s for the word hometowned. According to the Real Life Dictionary, it’s ‘legalese for a lawyer or client suffering discrimination by a local judge who seems to favor local parties and/or attorneys over those from out of town.’”). 89. Okla. Stat. tit. 12, §728; see also Okla. St. Dist. Ct. R. tit. 12, §30. 90. Cyr v. Walker, 29 Okla. 281, 116 P. 931 (1911); Buck v. Branson, 34 Okla. 807, 127 P. 436 (1912); James v. Adams, 56 Okla. 450, 155 P. 1121 (1915); Unussee v. McKinney, 133 Okla. 40, 270 P. 1096 (1928); Thomas v. Healey, 152 Okla. 93, 3 P.2d 1047 (1931). 91. See Barrett v. Barrett, 878 P.2d 1051, 1055 (Okla. 1994) (holding that state courts must honor tribal court judgments but that the trial court erred in not allowing a party to attack a tribal court order based upon fraud); Sheppard v. Sheppard, 655 P.2d 895, 902 (Idaho 1982) (holding that a tribal decree of adoption is entitled to full faith and credit as a decree of a territory under 28 U.S.C. §1738 (1994)); Jim v. CIT Fin. Serv. Corp., 533 P.2d 751, 752 (N.M. 1975); Halwood v. Cowboy Auto Sales, 946 P.2d 1088, 1090 (N.M. Ct. App.); Chischilly v. General Motors Acceptance Corp., 629 P.2d 340, 344 (N.M. Ct. App. 1980), In re Adoption of Buehl, 555 P.2d 1334, 1342 (Wash. 1976); see also Walksalong v. Mackey, 549 N.W.2d 384, 387 (Neb. 1996); Jackson County ex rel Smoker v. Smoker, 445 S.E.2d 408, 411 (N.C. Ct. App. 1994); City of Yakima v. Aubrey, 931 P.2d 927, 929 (Wash. Ct. App. 1997); cf. Brown v. Babbit Ford, Inc., 571 P.2d 689, 694 (Ariz. Ct. App. 1977) (holding that Arizona state courts were not required to give full faith and credit to enactments of a Navajo tribal council); Lohnes v. Cloud, 254 N.W.2d 430, 433 (N.D. 1977). 92. See United States ex rel. Mackey v. Coxe, 59 U.S. 100, 103 (1856) (implying that an Indian tribe is a domestic territory whose “laws and proceedings of the Cherokee territory, so far as relates to rights claimed under them, should not be placed upon the same footing as other territories in the Union.”). 93. 28 U.S.C. §1738A. 94. See, e.g., Tracy v. Superior Ct. of Maricopa County, 810 P.2d 1030, 1051 (Ariz. 1991) (finding that a subpoena to appear in a Navajo court should be enforced under the Uniform Attendance of Witnesses Act). 95. See 28 U.S.C. §1738B; see also In re: Day v. State, 900 P.2d 296, 300 (Mont. 1995) (noting that the Child Support Act includes “Indian Country” in the definition of “states”). 96. See 18 U.S.C. §2265. 97. See 25 U.S.C. §1911(d). A child custody order under the Indian Child Welfare Act is an order of foster care placement, termination of parental rights, pre-adoptive placement or adoptive placement. See 25 U.S.C. §1903(1). Interestingly, the Indian Child Welfare Act does not mandate that a tribal court grant full faith and credit to a state court order creating the somewhat anomalous situation where a tribal court could gain a transfer of jurisdiction over a child custody proceeding and ignore the state court rulings up to that point of transfer. See generally 25 U.S.C. §§1911 (1994) (providing rules for Indian tribe jurisdiction over Indian child custody proceedings). 98. 28 U.S.C. §1738A. 99. See In re: Larch, 872 F.2d 66, 68 (4th Cir. 1989); Eberhard v. Eberhard, No. 96-005-A, slip op. at 6 (Cheyenne River Sioux Tribal Ct. App. Feb. 18, 1997). 100. Examples include Public Law 280 itself, which mandates that state courts apply the laws of a tribe, including customary laws, if they do not conflict with state law, in resolving a private dispute. See 25 U.S.C. §1322(c) (requiring states to give full force and effect to any tribal ordinance or custom, exercised in the tribal authority, in determination of constitutional civil causes of action, so long as it is not inconsistent with applicable civil law of the state); 25 U.S.C. §483(a) (requiring a state court to defer to tribal court jurisdiction in a foreclosure of a mortgage on trust land). 101. Every Day Is a Good Day: Reflections by Contemporary Indigenous Women (Fulcrum Publishing, 2011). 102. See Muriel H. Wright, A Guide to the Indian Tribes in Oklahoma, 70 (1951). 103. Chadwick Smith and Faye Teague, “The Response of the Cherokee Nation to the Cherokee Outlet Centennial Celebration: A Legal and Historical Analysis,” 29 Tulsa L.J. 263, 293 (1993).
THE OKLAHOMA BAR JOURNAL 16 | APRIL 2024 Indian Law The Unfortunate Path: The History Leading to the Indian Child Welfare Act By J. Renley Dennis Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 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: 1) Changing the children’s names to English names 2) Cutting the children’s hair 3) Confiscating traditional clothing and regalia 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.
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