No. As discussed later, ICWA expressly exempts from coverage several types of custody proceedings such as divorce proceedings in which custody of the child will remain with one of the parents, and proceedings in which the child is not a member of a federally recognized Indian tribe. IN addition, ICWA contains courts to adopt various interpretations of them, creating some uncertainties (and leading to some inconsistencies).
To help state courts resolve these uncertainties, the Department of the Interior’s Bureau of Indian Affairs issued a set of guidelines in 1979 entitled “Guidelines for State Courts; Indian Child Custody Proceedings” (“BIA Guidelines”). The guidelines are not binding on the states as is ICWA, but state courts have given them great weight and rarely depart from them. However, as discussed below, courts have reached conflicting decisions in some areas even with the help of the Guidelines.
ICWA establishes procedures that must be followed and rights that must be afforded by state courts when determining temporary (foster care) or permanent (adoption) placement of Indian children. The following is a brief summary of these procedures and rights, all of which are discussed later in this chapter.
- If the Indian child is domiciled on an Indian reservation or has been made a ward of the tribal court, the tribal court has exclusive jurisdiction over the child in all custody matters. State courts may not adjudicate these cases.
- If the child is domiciled off the reservation, the state and the tribal court has concurrent (shared) jurisdiction. Should a custody proceeding be initiated in state court, the court must notify the child’s parents and tribe, and they each have a right to intervene in the proceedings. If either the tribe or a parent requests it, the state court must transfer the case to tribal court unless a parent objects or good cause exists to deny the request.
- If the case remains in state court, the court may not terminate parental rights without proof “beyond a reasonable doubt” or (place the child in foster care without “clear and convincing evidence”) that continued custody by the child’s family “is likely to result in serious emotional or physical damage to the child.
- If the child’s parents are indigent, they have a right to a court-appointed attorney, and separate counsel must be appointed for the child when the best interests of the child require it.
- Before a state court may place an Indian child in a non-Indian adopted home, the court must give sequential placement preference to, first, the child’s extended family, second, to other members of the child’s tribe, and third, to other Indian families, unless good cause exists to ignore this placement hierarchy. A similar hierarchy is imposed in foster care placements.
- If a state court’s placement of an Indian child violates ICWA, that placement is subject to invalidation upon petition of a parent or custodian of the child or by the child’s tribe.
- Tribal court custody decisions are entitled to the same “full faith and credit” as state court custody decisions, meaning that they normally must be respected and enforced by other courts.
- The state must keep accurate records of all Indian children placements to which ICWA applies and make those records available to the federal government and the tribe. In addition, when the adopted Indian child becomes 18 years old, the state must provide the child upon his or her request with the names and tribal affiliation(s) of the child’s biological parents.
As these procedures and rights reflect, ICWA creates a dual jurisdictional system that favors the tribe. When the child lives on the reservation, state courts have no jurisdiction to determine the child’s custody. When the child lives off the reservation, tribes and states have concurrent jurisdiction, but jurisdiction presumptively lies in the tribe because the state court must transfer the case to tribal court upon request of the tribe or one of the child’s parents, except in limited circumstances. ICWA, in other words, “establishes a preference for tribal court jurisdiction.” Moreover, even when a case remains in state court (as it can in some situations), ICWA allows tribes to intervene in the proceeding, reflecting Congress’s conclusion that state courts are more likely to make proper placement decisions if tribes have an opportunity to inform the court as to the tribe’s social and cultural values.
Thus, state courts are placed on notice by ICWA, as the Montana Supreme Court stated in 1998, “that they are, in fact, a significant part of the problem regarding the high number of improper Indian placements, and that “tribal courts are uniquely and inherently more qualified than state courts to determine custody in the best interests of an Indian child.” ICWA was enacted, the South Dakota Supreme Court observed in 2005, to assist “with our responsibility to promote and protect the unique Indian cultures of our state for future generations.”
I understand that my perspective on this issue will generally always come from a different perspective than most of the out spoken folks in Indian Country. After all, I did not grow up on a reservation, nor experience the “classic” urban native experience. I am a native woman who was adopted out when I was a baby. Some call people like me “lost birds” and “split feathers.” Folks like me have gone through the modern assimilation process that has taken over what the boarding and residential schools have done to our grand parents and other ancestors.
As we’ve seen in the past few weeks, Indian Country Today has graciously written about the issue of Indian Child Welfare and the fact that even today, despite the passage of ICWA in 1978 that was designed to stop 25% of all native children in the country being adopted out to non-native families, that the problem still persists. This past summer we were reminded of this with NPR’s report of 700 native children in South Dakota being adopted out of their communities in this past year alone. The year of my birth, 1988, ten years after the passage of the act, a study was done which found that during that time the rate which native children were being adopted out had risen to 35% of all native children in some states.
Unlike folks on the reservations whom have access to family and community members and resources if they want to learn and engage about their cultures, and unlike native kids growing up with their families in urban centers like Chicago with their American Indian Center, as native child adopted out to non-native parents, I did not have this access. Regardless of my disconnection to any sort of native community, it did not stop me from having a very strong pull to my roots and a drive to learn about my cultures.
Interestingly enough, as I found when I grew older, this connection and pull, this need that I felt even as a very young child to learn about my cultures and my people and engage in them wasn’t a unique thing that only I experienced. That feeling is felt by many native people who’ve been adopted out. Some call is Split Feather Syndrome, others say that it comes on due to the prayers of those who’ve prayed for those who’ve been adopted out so that they may return to their communities. Whatever it is, it’s real, and happens.
From my experience, sometimes that pull can be a heavy thing to carry. I reached out as a young child and throughout the entire course of my life to learn about my cultures. However when you’re removed, 500+ individual tribes and cultures get reduced down to 3, sometimes 4 tribes: Cherokee, Sioux, Navajo, and Apache. These 4 cultures/tribes get culturally reduced down to the appearance of what I would now call the dominate society’s tacky rendition of plains culture.
Removed, I had little access to legitimate representations of Lakota culture and Choctaw culture. Being ignorant, while fiercely proud of being native, I took every representation of native americans in the media and let them become me. After all, in my mind, costumes like the ones sold in Halloween stores and in the old westerns told me that THIS is what my ancestors dressed like… and if I wanted to be Native, I need to dress that way, talk those ways, act those ways, and dear god, I better also be sure sure my hair was straight, just like those Natives on TV, in the photos, ect. When you’re removed, and there’s no one there to tell you what is legitimate and what is a stereotype, how are you to know? I can tell you that the American public schools definitely will not. Popular media, as we know it right now, will not. Dr. Phil will not.
I am now nearly 24 years old and have been able to reconnect with native communities. I have been told by a native social worker, that it’s impressive that I’ve been able to do so at all, given that many children adopted out never are able to reconnect. I know the toll the native american costumes and the cultural appropriation of native cultures being sold in stores do. I know how the stereotypes that those costumes perpetuate can really screw up someone that’s been removed physiologically and “stunt” their growth. Too many times have I had to attempt to weed through what was real and what was a stereotype in my quest to reconnect as a Lakota and as a Choctaw person. These images do not make it easier.
As Kimberly Roppolo has said in her story Breeds and Outlaws, “You’d think, knowing the stories about the times we’re in, that folks would stop fighting about who’s more Indian. That for things to change, we all got to be resurrected, that this Ghost Dance is one of the living. Besides, if we’re going to “repatriate” artifacts, we ought to “rematriate” people .”
While it can never be reiterated enough that we need to make sure that ICWA is followed and interpreted by the Supreme Court and social welfare agencies the way it was intended to be interpreted, it should also be said that as native people, we should make sure that the way we are portrayed in the dominate media is correct. Negative representations of natives in the dominate culture have negative effects on native youth. Thus, stereotypes in the media have a negative effects on the future of native people. It is imperative that we continue to fight the stereotypes and educate people about this issue.
A little more about the woman whose life story The Island of the Blue Dolphins was based on:
The ‘Lone Woman of San Nicolas Island’ was found in 1853 by Captain George Nidever. She had been living there by herself since 1835, the year her people were evacuated from the island. But she seemed healthy and happy when she was found:
According to Nidiver’s account, instead of running way “she smiled and bowed, chattering away to them in an unintelligible language.” She was “of medium height… about 50 years old but …still strong and active. Her face was pleasing as she was continually smiling… Her clothing consisted of but a single garment of skins.”
She was the last member of her tribe, the Nicoleño, and no one on the mainland could understand her language, not even other Indians who were also native to the Channel Islands. Unfortunately, she died of dysentery only seven weeks after she was brought to Santa Barbara. She was christened Juana Maria by a missionary priest, but her true name is unknown.
Her people, language, and name aren’t the only things that were lost to history. According to the Wiki article about her, her possessions, including her water basket, tools, and clothing “were part of the collections of the California Academy of Sciences, but were destroyed in the 1906 San Francisco earthquake and fire.” The cormorant feather skirt was reportedly sent to the Vatican by priests, but it seems to have been lost. As well, the cave in which she dwelt for so many years hasn’t been located until now:
After more than twenty years of searching, a Navy archaeologist believes he has found the cave on San Nicolas Island occupied by The Lone Woman—better known to many as the protagonist of Scott O’Dell’s 1960 classic, Island of the Blue Dolphins. The Newberry Medal–winner was based on the true story of a Native American woman left behind when the rest of the Nicoleño tribe was evacuated from the channel islands by missionaries after the population was decimated by Russian fur traders; one story has it she returned to the island to search for her missing child.
According to the LA Times article about the discovery:
“We’re 90% sure this is the Lone Woman’s cave,” Schwartz told several hundred fellow researchers last week at the California Islands Symposium in Ventura. Further excavation is necessary, he said, adding that a crew of students has painstakingly removed about 40,000 buckets, or a million pounds, of sand from a cavern at least 75 feet long and 10 feet high.
In a separate discovery that also could shed light on the Lone Woman and her people, researchers stumbled across two redwood boxes poking through a steep, eroding cliff. The containers, probably made from recycled canoe planks and held together with the tar that washes onto island beaches, hold more than 200 stone blades, harpoon points, bone fishhooks and other implements.
It may never be known just who left the cache of tools, he said, but “it’s at least a reasonable hypothesis” that it was the Lone Woman, who is known to have stashed useful items at a number of places around the island.
As we all know and are excited for, November is Native American Heritage Month! How do you plan on celebrating?
To embrace this time of year check your local PBS listings to view Native Stories such as “Standing Bear’s Footsteps”, “GRAB”, “Racing the Rez”, “Sun Kissed”, “Smokin’ Fish”, “The Thick Dark Fog” and “Barking Water”!