Indian Child Welfare Act
The Devils Lake Sioux Tribe noticed that the local county welfare office routinely removed children from their homes and placed them in foster care. They allowed non-Indians to adopt the children without consent from the parents. The tribal officials were not consulted over the adoptions. With the assistance of Association on American Indian Affairs (AAIA,) the tribe decided to challenge these actions. Events following this challenge led to the passage of Indian child Welfare Act.20
On November 8, 1978, he Indian Child Welfare Act (ICWA) became Public Law. ICWA was designed to protect Native American families, and preserve cultural heritage. Whenever possible, ICWA is to make an active effort to keep Native children with their biological parents.
Title I of the legislation gave the tribal government the power to assume jurisdiction of child custody over an Indian child. The child must me a member of the tribe or eligible member of a federally recognized tribe. Membership will be determined by the relevant tribe. Temporary foster care placement, hearings to terminate parental rights, pre-adoption placement after termination of parental rights, and adoptive placement require ICWA intervention.
The tribe has exclusive jurisdiction of the proceedings if the mother or the child live in Indian country. If a proceeding is brought to the state court by a child or parent who live outside Indian country, then the state court is required to notify the relevant tribe. The tribe intervenes and the case will be transferred to tribal courts. In the event that biological parents waive transfer, the state courts are still required to follow ICWA’s preferential placement, unless they can show good cause to the contrary. Preferential placement include a child being placed with member of Indian child’s extended family, placement with other members of the Indian child tribe, and placement with an another Indian families.
Controversies and misunderstandings continue to undermine the intent of ICWA. Despite being aware of the requirements ICWA, many state child welfare departments often fail to report to tribes, and often proceed under state courts. When this happens, the tribe has to file a petition with the state court as an intervention.21 Others believe that because of placement priorities emphasized parental and tribal placement, ICWA jeopardized the safety of American Indian children, especially when high standard of evidence is required to intervene in the case of an abused child. Since the passage of ICWA, 25% more children are being placed in out of state home care. Children are being moved to home care to await culturally appropriate placement, instead of preserving families or preventing placement.22 Funding for social services has also become an issue, especially to meet the needs of children being placed in foster care. Caseloads are often large, and high turnover rate for case workers. The high turnover rate prevents the welfare workers from learning the provisions of ICWA.23
Naat’áani
According to Navajo Origin Stories, four chiefs were designated as the first leaders by Changing Woman after the Navajos emerged from the Lower World to the Upper World. Each Chief was assigned to each cardinal direction, with the East Chief having priority. The function of first Naat’áanii were selected to provide discipline to the people. Disciplines included corrections of behavior, maintenance of moral restriction, and enforcement of economic laws. They worked as mediators between the people and the Diyin Dine’é (Navajo Deities). They organized the world, held the first council, and established clans24. The people were given directions on how to build hogans, develop farming using an irrigation system, and hunting.
Before the Spaniards and the Americans came to the southwest, the Navajos had their own government, but it did not share any similarities to either the Spanish government or the American government. Navajo societies governed through “natural communities” that was more economically based and geographically determined. The cohesiveness of the Navajos people came from the common linguistic and cultural heritage in a well-defined territory.25 The people did not have a main leader or central government because their political organization in general did not extend beyond local band who were led by Naat’áanii26 Naat’áanii were headmen who often sought advice from elderly or a medicine men to address internal matters, intertribal affairs, hunting, and food gathering issues. Women were not excluded from becoming Naat’áanii.
The Navajos recognized a need for separate War Naat’áanii and Peace Naat’áanii. Neither Naat’áanii had power over the other, and often influence depended upon the quality of personal character. To become eligible to be selected as a War Leader, an individual had to have extensive knowledge of War Way Ceremony, which were conducted to bring about successful raids against outside forces. Peace Leaders had to have to the ability to speak with eloquence, have excellent character, and charisma. In addition, they had to serve both in sacred and day-to-day aspect of Navajo life and culture.27 Women had as much voice as the men. Once selected, a Peace Naat’áanii served for life. The responsibility of the Peace Naat’áanii included economic development, disputes, and diplomatic representative. Evidence suggests that the 12 Peace Naat’áanii and 12 War Naat’áanii gathered periodically every two to four years, and odd years during emergencies. The gathering served for several purposes: to conduct a ceremony to insure a productive winter and fertile soil, and during a war, War Naat’áanii often took the floor. In addition, the assembly often served as a political regrouping, despite community Naat’áanii exercised regional authority.28
When Spaniards and American colonies expanded into the southwest, they often assumed that the Navajos had one main leader who could speak for the tribe. The government would make a treaty to stop the Navajos from raiding with one Naat’áanii, but that Naat’áanii only represented his band of Navajos. Unfortunately, the tribal assembly became extinct due to the hardship caused by the conflict with the federal government.
The treaty of 1886 marked the beginning of the current government. Originally, the Indian Agents appointed “head chiefs” and confirmed by Secretary of Interior. Manuelito was appointed as head chief, followed by Henry Chee Dodge. In addition, regional headman were appointed by the Indian Agents to represent their communities, and often met annually with the Indian Agents to discuss issues. The Indian Agents exercised their power of authority by replacing any Head Chief who didn’t “play ball.”29
In 1900’s, the Navajo Reservation quadrupled in size, and the population doubled. A single Agent could not effectively oversee the affairs of the Navajos. To correct the problem, the reservation was divided into six agencies operated by agency superintendent. The superintendent from Luepp, AZ suggested using the chapter system to better serve the communities. The local governments were quickly established, where each chapter elected a president, vice president, and secretary/ treasurer. The meetings at the chapter houses were usually held once a month to discuss local projects, livestock improvements, and agricultural practices. Local governments were not new, but an extension of family structure, with additional ideas such as majority voting, elected officials, and the office of chairman. Although the local governments were established, it was still not centralized.
In 1922, Oil was discovered on the Treaty Portion of the reservation. Originally, interested companies had to contact Agency Superintendent, who gathered a general council of Navajos to consider the company’s request. This practice suggested that the council acted as subordinates to the government agents, and did not represent other Navajos in other agencies. The Oil and gas companies pressured the Department of Interior and Agency Superintendent. Leases granted to the companies were sporadic, so the companies exerted more pressure, this time including the commissioner of Indian Affairs to take away leasing powers from the Navajos. The Navajos refused to surrender their rights to lease tribal lands. The Interior Department changed its policy so that royalties from gas and oil, bonuses, and rentals would belong to the whole tribe, not exclusively to one agency. Secondly, the Bureau of Indian Affairs had to establish a “business council” that authorized lease grants. However, the “business Council” failed because it required a majority vote as stated by Article 10 of the Treaty of 1868. Once again the federal government exerted its power by assigning a Commissioner of Indian Affairs. Commissioner Burke established a document to create a Navajo Tribal Council, which included an elected Council member from each agency, who would serve for four years. In addition, if a council is not elected, the Secretary of Interior would fill the position, and the council had to meet in the presence of Commissioners presences. Furthermore, the commissioner reserved the rights to remove a council member. The document was rejected upon arrival.
When the document was rewritten, it excluded the removal power of Secretary of State, and added a forum, interpreter, and a means of succession in the event that the chairman or vice chairman position became vacated.30 The number of council members were also increased from 12 to 24 member: 12 voting delegates, and 12 nonvoting alternates. The Council still had to convene in the presences of Commissioner of the Tribe. The first Chairman elected in office was Chee Dodge, but failed to elect a Vice president. With the newly established central government, the council was able to unanimously approve the resolution to give Commissioner Hagerman the authority to sign all gas and oil leases on behalf of the Navajo Indians.31
Currently, the tribal government include the president, Vice president, and 24 Council Delegates. The Council Members meet 4 times per year. In 2010, Johnathan Nez announced that the Council members were reduced from 88 members to 24 members, a change in Title 22 of Navajo Nation Code, which meant that the reservation had to be redistricted immediately among the 24 council members. Now each member represents anywhere from 1 -9 chapters, depending on the size of the population.
Navajo Foundational Law
Law in America is defined and practiced as written laws which are enforced by authority figure. When there is a conflict, rules developed by legislatures, courts, and administrative agencies are applied. Ironically, the application of the rules was developed by a system that is foreign to the actual problem, and the judgement is concluded according to the parameters set by the Law.
The Navajo System is best described as a “Horizontal” model, where all sides are portrayed equally: there is no one person above another, no right or wrong, winners and losers or consequences. The core of the justice system is problem solving and requires careful examination of each aspect of a given problem and reach a conclusion on how best address it. The end goal of a final decision is restorative justice which allows for full and equal participation of the people in a dispute. There must be healing in this Peacemaking Justice System.
Navajo Justice System was designed based on the principle and application of Navajo Foundational Law, roughly related to Natural Law. The foundational building blocks of Navajo foundational Law included three core principles: Hózhó, K’é, and K’éí. The law, or beehaz’áanii means something fundamental, something that is absolute, and exists from the beginning of time.32 According to Navajo Origin, essence of life derives from beehaz’áanii, and is the source of healthy and meaningful life. The principle of beehaz’áanii was given to the Navajos by the Holy People for better thinking, planning, and guidance stated in songs and ceremonies which tell us of hózhó – restoration of balance and harmony.
Navajo use K’é or clanship to achieve restorative justice. K’é principle describes the ideal relationship among everyone, and the idea that everyone is related; therefore, must aspire to treat each other with respect. The principle of K’éí is the concept of clan kinship. Navajos use clan kinship to refer to specific relationships among relatives, and it is used as a matter of family etiquette. Each clan represents a specific origin, and a specific attributes and behavior, which is used to guide interaction between and among clans.
According to the Navajo Fundamental Law, the Navajo Children’s Code (Áłchíní Bi Beehaz’áanii Act, ABBA) proclaims that all children, including unborn occupy a place in Navajo society because they are holy and sacred. In addition, the Navajo Nation need to act aggressively and culturally appropriate way to protect her most precious and vulnerable resource. ABBA recognized the importance of extended families, K’é and K’éí, and the foundational importance of restoring family relationships to Hózhó.33
According to Navajo Fundamental Law, termination of parental rights is not customary or traditional to Navajo culture. Severance of parent-child relationship can be sought as a last resort, and after all options are exhausted including customary adoption. Customary adoption is allowable by Law if both parents consent in writing for their child to be adopted, if the parental rights of birth parents are not terminated. The child gains parents using customary adoption but does not lose his clan relatives. Extended families, as well as Nuclear Families have the same rights under Navajo Nation Law because it emphasizes the treatment of family units. The bottom line is that a child’s right to relationship will maximize access to parents, siblings, extended families, culture, and people. Furthermore, fathers do not need to go under scientific testing to determine paternity because it shakes the stability of the family and ensures that a child does not consider themselves fatherless. In addition, a non-Native father may resume custody since he became an in-law, as long as he is takes responsibility for the child.
Adoption on the reservations are under the jurisdiction of the Navajo Tribal Court. The tribe has a right to place a child. The guidelines for eligibility include but not limited to Navajo families. A married couple could petition to adopt a child. An unmarried or single person over the age of 21 are eligible to adopt Navajo Children. Many Native Children and Navajo children continue to float around in foster care, and many of these children are cared for by non-native foster parents. They do a fantastic job caring for the kids. However, the tribal adoption laws prevent them from adopting these kids who desperately need homes. The tribal adoption laws supersedes the state adoption laws.
Court Decisions: Challenges to ICWA
Adoptive Couple v. Baby Girl
A South Carolina couple, Matt and Melanie Capobianco, wanted to adopt baby girl Veronica. The adoption seemed like a done deal, especially since the mother relinquished her rights as a mother and put her daughter up for adoption. The father also relinquished his rights through a text message. However, the father was able to invoke the Indian Child Welfare Act to get his daughter back. The Capobianco had to give up 27 month old baby girl they cared for since birth.
The Supreme Court cited that ICWA did not apply in this case because the father was never present in his daughter’s life, and therefore, the family was not “intact.” Since the father did not have custody at the time the baby was put up for adoption, intact Indian family did not apply to him or his family. This was by far not the end of ICWA, but it was devastating to families. The placement provision remains, which means that a family who fall within this provision would formally still adopt a child.
Brackeen
The Brackeens decided to become foster parents. When a baby boy was placed in their care for a few months, they were warned that it was only for a few months because he was Native American. Once the Brackeens found out that the parents terminated their parental rights, they decided to adopt the baby with the support of the biological parents. By this time, the baby was with them for over a year. A state family court denied the petition to adopt the baby due to ICWA. According ICWA, the state had to contact the Navajo Tribe, the biological mother’s tribe. The tribe wanted to place him with a Navajo couple, which invoked the preferential placement clause and decided to place baby boy with an unrelated family within the same tribe. The justification of the court was that the Brackeen did not show “good cause” to adopt a Native child into a non-Native family. The Brackeen sued the federal government, and were successful in getting custody of baby boy. In early 2018, Baby boy was officially adopted by the Brackeen.34
Rebecca Black
In 1940, before ICWA, Rebecca Black, a Quinault tribal member, was removed from her grandmother’s home, and her parental right was terminated for being sick in the hospital. Black was taken from her family and adopted by a white family. Her new family made her feel like she needed to be grateful for being rescued from a poor existence. She didn’t learn anything about her culture. She became pregnant in her teens and was forced to sign “volunteer” adoption papers. She ran away from her adoptive parents, and eventually found her way back to her birth mother. She began fostering kids from tribes around Washington State. Her work allows her to keep her foster children attached to their tribal community. However, there is a shortage of foster care homes for children who need placement.
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