FEDERAL INDIAN LAW IN
THE STATE DISTRICT
The Policy Behind the Indian Child Welfare
• The Cherokee Indian Reservation is called
the Qualla Boundary.
• The Qualla Boundary comprises the
largest Indian Reservation east of the
Mississippi River, with 56,000 acres, more
or less in Jackson, Swain, Graham and
• As of May 10, 2006, there were 13,598
enrolled members of the Eastern Band of
• 7,590 of those enrolled members live on
the Qualla Boundary.
• The rest live all over the world.
• 562 Federally recognized Tribes
• “In four consecutive censuses, which
showed other groups growing by 7 to 10
percent, Native American populations
soared, growing by more than 50 percent
in 1970, by more than 70 percent in 1980
and another third in 1990. The 2000
census reveals an overall doubling, to
more than four million.”
• Jack Hitt, “The Newest Indians,” The New York Times Magazine,
August 21, 2005, p. 38.
• “Jack D. Forbes, an emeritus professor of
Native American studies at the University
of California at Davis, argues that
undercounts and other census quirks may
mean that the total number of Indians in
the United States today is in fact closer to
15 or even 30 million.” Id.
• “Using the 2000 census data, Indians can
be called America's fastest-growing
• So, y’all, as District Court Judges, are
going to encounter Native Americans in
your Courtrooms increasingly.
• And that means you are going to
encounter the Indian Child Welfare Act
(ICWA) as well.
The Indian Child Welfare Act
• 25 U.S.C. § 1901, et seq.
• We can go through the statute, bit by bit,
but I think it might be more interesting to
look at the highlights of major significance
to you and then examine the backstory,
the policies behind this legislation.
• “An Indian tribe shall have jurisdiction
exclusive as to any State over any child
custody proceeding involving an Indian
child who resides or is domiciled within the
reservation of such tribe…” 25 U.S.C. §
• If the Indian child lives off of the
Reservation, and a DSS action regarding
the child is brought in the District Courts
then this law applies:
• In any State court proceeding for the foster care
placement of, or termination of parental rights to,
an Indian child not domiciled or residing within
the reservation of the Indian child's tribe, the
court, in the absence of good cause to the
contrary, shall transfer such proceeding to the
jurisdiction of the tribe, absent objection by
either parent, upon the petition of either parent
or the Indian custodian or the Indian child's tribe:
Provided, that such transfer shall be subject to
declination by the tribal court of such tribe.
• Also, both the individual Indian parent(s)
as well as the Tribe, have a right to
intervene in the State Court proceedings
“at any point”: 25 U.S.C. § 1911(c).
• Preference shall be to place removed
children with Indian relatives, Tribal
members or other Indian families.
• The standards for meeting these
preferences “shall be the prevailing
cultural standards of the Indian
community” in question.
• This puts very unusual burdens on the
District Courts, first and foremost of which
is the requirement that the District Courts
must be race conscious, when we are all
trained rigorously from law school on to be
• Another burden on the District Courts is
the requirement that the Indian Tribe of
which the child might be a member must
• As you can imagine, this may not be a
• Finally, the Court has to implement the
cultural standards of the Tribe in question,
which may be a Tribe from the desert
Southwest, the Pacific coast, or
somewhere in between.
• The Indian Child Welfare Act is perhaps
the most obvious evidence of a sea
change on the part of Congress with
regard to the government’s relations to the
• Beginning with the removal of the Eastern
Tribes from their ancestral homes in the
1830’s to the termination of entire Tribes
as recognized bands of Indians in the
1950’s, the government embarked on
more than a century of what can only be
described as ethnic cleansing.
• Removal of the Eastern Indians was the
first step. This included the infamous
“Trail of Tears,” one of the most shameful
governmental operations in our proud
• The frontier shrank rapidly, though, and
different measures were needed to
address concerns about American Indians.
• In 1871 Congress declared that it would
no longer enter into treaties with the Indian
Tribes, thus ending the Treaty Era.
• Assimilation of Native Americans into the
dominant culture became Congressional
• One example of this was The Dawes Act
Or the General Allotment Act of 1887.
• The idea behind the Dawes Act was to
turn reservations into fee lands which
could be transferred by individual Indians.
• You can guess what the result of this was.
• Another, more pervasive, effort was the
removal of Indian children from their
parents for placement within white society.
• “A great general had said that the only
good Indian is a dead one…
• I agree with the sentiment, but only in this:
that all the Indian there is in the race
should be dead. Kill the Indian in him and
save the man.”
• --Captain R.H. Pratt, Superintendant,
Carlisle Indian Boarding School
• Another effort was forced conversion to
Christianity. This had the effect of
deconstructing Tribal cultures.
• This policy continued well into the 1960’s.
Our Juvenile Court Counselor well
remembers Indian children being removed
from their homes by well meaning Social
Workers and placed with white families in
the 1950’s and ’60’s.
• Unfitness could be found and children
removed from the Qualla Boundary for
such things as foraging for wild greens or
dressing an animal inside the home.
St. Mary’s Mission School, 1959
Colville boys pray before bedtime with Fr. Keyes, St. Mary's Mission School, Omak, Washington, 1959
Colville Girls Performing the
Crowing of the Blessed Virgin at St.
Mary’s Mission School in
• I don’t know what it is like in other places,
but there is a whole generation of
Cherokees in North Carolina who did not
teach their children the Cherokee
language, because the parents were
beaten in boarding school for speaking it.
• All of this is to illustrate that, with the
Indian Child Welfare Act, and the Indian
Civil Rights Act and other legislation, the
assimilation period is over. Congress has
recognized, finally, the utility of
maintaining strong Indian Tribes in this
• The ICWA burdens, then, on the District
Court, are really a reflection of
Congressional thought designed to
redress over a century of policies created
to eliminate the uniqueness of Indian
culture and way of life.