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FEDERAL INDIAN LAW IN THE STATE DISTRICT COURTS

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FEDERAL INDIAN LAW IN THE STATE DISTRICT COURTS Powered By Docstoc
					FEDERAL INDIAN LAW IN
 THE STATE DISTRICT
      COURTS
The Policy Behind the Indian Child Welfare
                   Act
• 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
  Cherokee Counties.
• As of May 10, 2006, there were 13,598
  enrolled members of the Eastern Band of
  Cherokee Indians.

• 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
  minority.” Id.
• 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. §
  1911(a)
• 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
  race neutral.
• Another burden on the District Courts is
  the requirement that the Indian Tribe of
  which the child might be a member must
  be notified.

• As you can imagine, this may not be a
  simple matter.
• 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
  Indian Tribes.
• 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
  history.

• 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
  policy.

• 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
        Washington, 1959
• 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
  country.
• 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.

				
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