By Frank Weir
Legal News
Michigan is at the forefront of an effort to right injustices against indigenous peoples that have existed for decades.
The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 to protect the best interests of Indian children and to promote the cohesiveness of families and tribes.
But in many ways its intent goes much deeper and is a response to officially sanctioned governmental actions toward Indian culture and its people that can only be described as unspeakable at the time they were perpetrated.
Washtenaw County Circuit Court Judge Timothy Connors has long been interested in ICWA and recently keynoted the first of five regional trainings about the act in Ann Arbor.
The trainings are co-sponsored by the Child Welfare Services Division of the State Court Administrative Office and the Governor’s Task Force on Children’s Justice.
In addition to Connors, the training in Ann Arbor featured Tribal Judge Angela Sherigan; Stacey Tadgerson, director of Native American Affairs for the Michigan Department of Human Services; Allie Greenleaf Maldonado, an attorney affiliated with the Little Traverse Bay Bands of Odawa Indians; Cheboygan County Probate Court Chief Judge Robert Butts; and Frank Vandervort, clinical assistant professor of law at the University of Michigan Law School, Child Advocacy Law Clinic.
Upcoming trainings will be held in Marquette on Aug. 24, Mt. Pleasant on Aug. 25, and Petoskey on Aug. 26.
Tadgerson spoke at length providing a history of the American Indian experience and the changing attitude of the U.S. government toward tribal life.
She noted that attitudes toward Indians could be broken into several distinct periods, the first being a time of treaties in which tribes ceded land and waterways to governmental entities in agreements which were sometimes fair, sometimes not.
As settlers continued to expand into Indian living areas, the government saw treaties as ineffective and began a policy of terminating Indian land interests by wars and other aggressive actions.
During this period, boarding schools were established for Indian children.
The schools proved to be one of the most egregious and little-known injustices against Indian life.
The government viewed adult Indians as savages that could never assimilate into white European life.
But it was believed that children could be removed from their families, put in boarding schools where traditional dress, language and customs would be strictly forbidden.
The aim of the schools was to solve the “Indian problem” once and for all by destroying native culture. It was hoped tribes would eventually cease to exist.
Tadgerson noted that often children would be placed in boarding schools thousands of miles from their homes to be “westernized.”
Both Tadgerson and Sherigan emphasized that treatment in the schools was horrendous and “many children” perished in them of “broken hearts or broken bodies.”
“You will always find a cemetery near the sites of these boarding schools,” Tadgerson said with Sherigan later adding, “Twenty-five to 30 percent of children removed and sent to boarding schools did not come back to their families or tribes; not because they assimilated into another life or were adopted. They died. That’s important to keep in mind when we talk about why we have this law.”
Maldonado noted that there is a tendency for some (perhaps perpetuating long-held attitudes of neglect and indifference) to ignore the boarding school era by saying that “it was a long time ago.”
“Removing Indian children was a formal governmental policy,” Maldonado explained. “The absolutely alarming rate of removal of Indian children chiefly led to ICWA. In Wisconsin, the rate of separating children from parents among Indian families at one time was 1,600 times greater than that for non-Indian children. Were Indian parents so much worse than their non-Indian counterparts? No. Governmental policy was based on the belief that separating Indian children from their parents, from their tribes, was a good thing. But in fact, it created some of the greatest harm that had been done against Indian life since the arrival of Europeans on the continent,” she said.
“And the policy of separation was a major aim of Indian services for generations. I fact, this happened to my own mother after my grandmother died. My family had hundreds of relatives in the Beaver Island area but my mother and her brother were separated and sent away to work as domestic servants for a Mennonite minister.
“Indian boys often were taken to work on farms, the idea being to teach them something useful, to be farmers, or the girls to be maids.
“My mother never saw her family again. She married at 18 and never returned to her home. I’m the first to return to our familial home.”
Maldonado quoted a governmental explanation of policy from 1886: “The adult savage is not susceptible to civilization therefore we have turned to the child to abandon barbarism and travel along the Christian path. They must be removed so they can sleep, talk, and walk in the manner of the white man.”
Maldonado said that Congress finally realized that official policy “broke the fabric of Indian families and when families were broken apart en masse, it threatened the existence of all the Indian tribes. And that was the impetus for ICWA. The very survival of Indian tribes was at risk.
“So basically, Congress passed ICWA to try to fix that which it took responsibility for breaking. The two main purposes of ICWA being:
—ICWA protects the best interests of Indian children as determined by their tribe.
—ICWA promotes the stability and security of Indian tribe families.”
Under the implementation of ICWA, tribes have exclusive jurisdiction in any child custody proceeding involving an Indian child who resides within the reservation of the tribe; ICWA Child Protective Services actions must utilize “active efforts” to prevent removal of the child from the family; must utilize “active efforts” to attempt reunification of the family; must implement ICWA’s placement preference of an Indian or relative foster home or adoptive placement; use a “beyond a reasonable doubt” evidentiary standard for termination of parental rights versus the clear and convincing standard utilized in state courts.
Guest panelist at the training, Cheboygan County Probate Court Chief Judge Robert Butts, noted that “as soon as I took the bench, I started hearing these cases and learning as I went along.
“When ICWA is involved, your responsibility is to inquire about tribal membership. The best practice in my opinion is to give the tribe notice whether ICWA applies or not. The more people I hear from helps me make a good educated decision to see if the situation can be repaired. If it can’t, then we have to find a new family for this child and ICWA is a good tool for that.
“Tribes need to be involved to assist the court and I rely on them heavily for services to be made available for the child or the family. In our area, we have Canadian tribes in proximity but whether the involved tribe is American or Canadian, I will listen to what they have to say.
“I am more comfortable as a judge when everyone is communicating, especially in open adoptions which are allowed under ICWA.
“We had one case where it was determined that a child would be placed in a non-Indian family. The family agreed to have the tribe actively involved. I terminated parental rights in my county and the adoption was finalized in Leelanau County. We had a ceremony in which the tribe gave its approval to the adoption on the courthouse steps. I think the tribe was thinking along the same lines as what we ended up doing.
“This is the way to fix what happened in the past. I feel badly for what has happened and this is the way to fix it. Money can’t fix these families but by using ICWA, we can have the tribes involved and preserve Indian families and, thereby, Indian culture,” he said.
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