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Legal Myths & Reality By Judge Joan Shkane





By Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

MYTH:  Native American children in the U.S. have few rights and few government-recognized legal connections to their tribes.

REALITY: Recently Native American (U.S.) children and First Families (Canadian) children have been in the news.  Investigations in Canada have found many, many unrecorded child graves connected to Indian residential “schools”. The current investigations deal mainly with death and burials of many of these children who were residents in church-run and state-run residential “schools” to where they were forced by each of the governments. 

The U.S. is not innocent of these horrors.  The U.S. had similar schools starting around the early 1900’s.  Some Indian children were forcibly taken from their traditional homes, families, tribes, and schools.  The stated government and church goal was to make these children more a part of U.S. and Canadian white culture and society, so that they could be more successful as adults in a predominantly white culture.  This was believed by whites to be a positive move.  Most of the children were from intact Indian families who had extended family networks within the tribes.  They were placed either in mostly church run schools where they lived full-time, or placed with non-Indian families and religious groups, such as the Church of Jesus Christ of Latter-day Saints (Mormons) in the State of Utah.  The U.S. government through the Bureau of Indian Affairs actually paid some states to remove the Indian children from their tribes and place them elsewhere. 

Hearings were held in the U.S. House of Representatives starting in the 1970’s.  The House uncovered horrifying facts.  The Indian children in the schools or non-Indian homes were forbidden to use their native languages, practice their religions, or engage in Indian cultural practices such as food preferences, entertainment practices and dress.  They were forbidden from visiting their families or tribes.  The House found a high incidence of physical abuse and sexual abuse of the children.  The native tribes testified that the government had a lack of understanding of the role of extended families in tribal cultures, and employed child welfare workers who were not culturally sensitive to the needs of the Indian children.  The House found that the removals damaged the emotional lives of many children.  Those who had lived through it said they lost touch with their people and culture, while they did not belong to the white culture either. 

Congress further found that the standard for custody of “in the best interest of the child” can be different for Indian and for non-Indian children.  The Indian child traditionally has a larger extended family and tribal relationships than the non-Indian child. The state best interest standard values a close bonding with at least one adult who is a parent figure.  The House recognized for the first time the role of the Indian tribe as an extended family with close bonding among tribal members in Indian culture. 

An important witness in the Congressional hearing was Louis La Rose of the Nebraska Winnegbago Tribe.  He said: “I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption court, erase all of their records and send them off to some nebulous family…residing in a white community and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think…they destroy him”. Others described the residential schools as cultural genocide, the intentional and deliberate killing of a culture so that the culture is not perpetuated.  Some say that in the U.S. between ten thousand and thirty thousand Indian children were removed in this way and put in residential schools, foster care with non-Indians, or adopted by non-Indians. The per capita rate of Indian children in foster care was almost 16 times higher than for non-Indians. 

As a result of the hearings, Congress recognized 4 major factors that contributed to the high number of Indian children removed by the states.  They were: 1.  The states did not have tribal appropriate standards for judging the fitness of Indian families; 2.  The states denied due process to the children, parents, and tribe, by failing to provide a removal system that was culturally sensitive; 3.  The federal government gave states economic incentives (money or equivalent value) to remove the Indian children for placement or adoption; and 4.  Social conditions in Indian country were not assessed in culturally sensitive ways. 

Some states had an Indian Placement Program that removed the Indian children and placed them in the homes of the members of the predominant church in the state.  By the time of the hearings in the 1970’s about 5000 Indian children were living in Mormon homes in the state of Utah, after they were removed from their homes and tribes.  

In 1978 Congress passed the Indian Child Welfare Act (ICWA).  No-one believed then or now that this law, or any other law, can make up for the horror that was visited on the Indian children, families, and tribes.  However, it was an attempt to ensure that it cannot happen again, and that the culture of the Indian tribes is respected and considered, with all its differences from the typical white family. 

ICWA applies in the following circumstances:  1. Adoption, voluntary and involuntary termination of a parent’s right to raise the child, and removal of an Indian child from family and tribe, and placement in foster care of Indian children.  (ICWA does not apply in divorce and many child delinquency proceedings);  2.  An Indian child is an unmarried person under 18 years old who is a member of an Indian tribe, or is  tribal eligible for membership and is the biological child of a member of an Indian tribe.  Each individual tribe decides whether a child is tribal eligible by their own rules.  Some tribes look at the Indian generation that the child has descended from (for instance, mother, father, grandparents, etc.), and some measure through the mother and some through the father.  It is entirely up to the policy of each registered tribe. 

ICWA addresses the child, the child’s immediate family, and the tribe each as separate entities, each with legitimate rights.  The goal with respect to the child is to preserve the child’s heritage.  The goal of protecting the parents is the same.  The goal of including the tribe as a separate entity is to preserve the Indian culture and tribal future.  In some cases, only the tribe, and not the family, can decide matters regarding the child. 

Procedurally, if a child is tribal eligible or a member of a tribe and the state court (Family Court in New York State) has such a case before the Bench, the tribe must be notified at least ten days before any decision is reached about the child (this does not, however, stop a state court from addressing an emergency, while waiting for a tribal response).  The tribe has the right to intercede at any time and remove the case to the tribal court to be dealt with there in every respect.  What this notification to the tribe means for the state court is that if notification to the tribe is not made and proven, any decision about the child is null and void for lack of the power to decide.  It also means that the state court can spend unlimited time and effort trying to adjudicate a case, only to have it all overturned at any time and the case transferred to the tribal court.  Needless to say, this is strong incentive for a state court to make the notification, even apart from doing the right thing and from following the law.  In order to avoid wasting time and energy, and possibly harming the child, parents and tribe, all New York State courts have large signs in the courts advising all concerned that if anyone suspects that a child may be eligible under ICWA, they must notify the judge immediately sot that appropriate notice may be made.  

The overall goal of ICWA is to ensure that residential schools in the U.S. will never happen again, and to recognize tribal value and sovereignty, and to underscore trust that a tribe will do the best by a child, according their standards and culture, and not by any other standards and culture.  It is especially important given the independent nation status of registered tribes.

Giving attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case. 


Utica Phoenix Staff
Utica Phoenix Staff
The Utica Phoenix is a publication of For The Good, Inc., a 501 (c) (3) in Utica, NY. The Phoenix is an independent newsmagazine covering local news, state news, community events, and more. Follow us on Twitter and Facebook, and also check out Utica Phoenix Radio at 95.5 FM/1550 AM, complete with Urban hits, morning talk shows, live DJs, and more.

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