Reviewed by Cynthia H. DeBose (formerly Hawkins-León), College of Law, Stetson University. Email: cdebose [at] law.stetson.edu.
‘Wakanyeja is our Lakota word for child. It is made up of two parts, wakanyan (sacred) and najin (to stand): so for us a child stands sacred in the world, a special gift from the Creator.’
‘Diné bi beenahaz’ aanii – children must be treated with the greatest of respect’
‘Kill the Indian in order to save the Man. … Transfer the savage-born infant to the surroundings of civilization, and he will grow to possess a civilized language and habit.’
In CHILDREN, TRIBES, AND STATES: ADOPTION AND CUSTODY CONFLICTS OVER AMERICAN INDIAN CHILDREN, Barbara Ann Atwood provides a thorough and compelling discussion of US statutory law, case law and policy, and their effects upon American Indian tribal law, policy and culture in general, and specifically their dual application to American Indian children. In this well-researched treatise, Atwood painstakingly documents and analyzes over 200 years of US federal and state child welfare policy and procedure regulating the custody placement and adoption of the American Indian child.
Professor Atwood has been publishing scholarly legal articles in the subject-matter area of American Indian family law and policy for over 20 years. Although she has included portions of her prior works in this book, the articles are in substantially revised form – this book is far from a mere “re-hash” or compilation of her prior work.
From the book’s first sentence in the “Introduction” – “When sovereigns compete to determine the interests of children, fundamental questions of power and legitimacy inevitably arise” –Atwood sets the clear tone of the book. She confirms an underlying premise that “American law should respect the distinct worldviews held by Indian tribes and their richly diverse approaches to community, family, parenting, child welfare, and adoption [which are all divergent from US norms].” Early on, Atwood states that the Indian Child Welfare Act of 1978 “compels respect for Native culture within the United States.” Thereby she signals her plan to provide a well-documented critique of US federal, state and American Indian tribal child welfare law and policy. From chapter to chapter, this goal is met.
The Introduction provides important factual information:
- There are 564 federally-recognized tribes in the US – many with [*355] children’s courts and child welfare programs
- In the 2000 Census, approximately 4,300,000 people self-identified as American Indian or Alaska Native as either single or mixed race
- Of the 4,300,000, 2/3 live “off” reservation or other Native lands (including 60% of all Indian children)
- In 2005, US tribal enrollment was 1,978,099 (a 3% increase from 2003)
Critical data provided in later chapters:
- The 2000 Census identified 1,400,000 children as American Indian; over 600,000 of those were mixed-race
- The 2008 Census reports that American Indian and Native Alaskan children under 18 years of age comprise about 1.7% of the US population
- In 2003, the federal DHHS in its AFCARS found that American Indian and Native Alaskan children represent about 2% of children in foster care
- In 2003, the federal GAO detailed that 5 states reported that over ¼ of the children in foster care were American Indian or Native Alaskan
- In 2003, the Child Welfare League of America reported that for every 1000 American Indian and Native Alaskan children 12 were in foster care; while 5 of 1000 white children were similarly situated
- According to the 2008 Harvard Project on American Indian Development, in 2000 the median household income for Indian areas was $24,027 whereas the overall US median household income was $41,994
- In 2000, 38% of Indian children ages 6 to 11 lived below the poverty level as compared to 18% of all races in the same age group
- In 2000, 12.5 of every 1000 Indian children had been placed in substitute care, compared to 6.9 out of every 1000 children from all races
Although there would be scant doubt in the mind of the informed reader, to affirm the immediacy of the issues she raises, Atwood begins each chapter with a hypothetical (from a compilation of actual cases) illustrating the chapter’s central focus. These brief narratives provide even more texture to the fabric of her manuscript.
Chapter One – titled “A Child’s Indian Identity” – explores the multi-faceted nature of “Indian-ness.” Rather than involving race alone, Atwood posits that Indian identity entails a fluid (and varied) compilation of political association, ancestry, ethnicity, tribal membership, language, cultural worldview, a historic relationship to land and/or race. Of the 1,400,000 children identified as American Indian in the 2000 census, over 600,000 were of “mixed-race” heritage. 38% of Indian children between the ages of 6 and 11 live below the US poverty level, compared to 18% of all races in the same age group. Tribal courts have less jurisdictional authority over non-reservation-domiciled American Indian children. Historically, reservations and other tribal lands have been plagued by “high rates of poverty, unemployment, [high school drop-outs,] family violence, infant mortality, suicide, and alcoholism.”
Chapters Two and Three – respectively titled “Tribal Courts, Tribal Jurisdiction” and “Tribal Family Law” – provide an [*356] in-depth discussion of the Tribal Court System in general and pursuant to the Indian Child Welfare Act of 1978 [“ICWA”] specifically. Interestingly, over 250 (of the 564 federally recognized tribes) have very diverse forms of judicial systems that would qualify as court systems in the western/US sense of the term. It is important to note that when regulating tribal members on tribal lands, tribal power is at its highest/strongest level. FISHER v. DISTRICT COURT (1976) is “broadly cited as a principle of exclusive tribal authority in family disputes involving tribal members.” The FISHER decision pre-dated ICWA by 2 years and is said to have been pivotal to ICWA’s mandates of exclusive tribal jurisdiction in delineated circumstances. In these instances, state courts should defer to the tribe unless the tribe declines to accept jurisdiction. However, the USSC has increasingly utilized tribal membership as the indicia for tribal jurisdiction – therefore, Atwood posits, “it seems unlikely that the [US Supreme] Court would uphold the exercise of tribal power to resolve custody disputes involving a non-[tribal-]member child.” The matriarchal, child-centered focus of the American Indian tribe – where often the extended family and sometimes the entire clan/tribe is responsible for all of the clan’s children – is frequently misconstrued by Anglo-American culture and its legal system to run afoul of the best interests of the child standard.
Chapters Four and Five provide a detailed analysis of the Indian Child Welfare Act of 1978 (“ICWA”), Pub. L. No. 95-608 (codified at 25 U.S.C. §§ 1901-1963 (2006)) and some of the “flashpoints” it creates when opposing values intersect – most significantly, the judicially-created “existing Indian family exception” and ICWA’s “good cause exception to placement preferences” under § 1915. In introducing ICWA, Atwood aptly states that:
[ICWA] was designed to remedy a long history of abuses by federal and state officials, state court judges, and private adoption agencies that led to widespread removal of Indian children from their homes and communities. … The policies of the Act had their genesis in the tragic history of [US] governmental destruction of Indian tribes, families, and culture.
Atwood, utilizing about 1/3 of the total text, provides a detailed and well researched recitation and discussion of the basis of the Act, its major provisions, and conflicts that it engenders.
My only minor quibble with this book is that Atwood should have rearranged the chapters to provide the reader – particularly readers who are not well-versed in American Indian law and policy – with a discussion of ICWA and its concomitant “flashpoints” as Chapters 1 and 2, rather than as Chapters 4 and 5 of seven total chapters.
In Chapter 6 Atwood questions the resultant permanency aspects for American Indian children in accordance with ICWA vis-à-vis more recent federal statutes such as the Adoption and Safe Families Act of 1997 (“ASFA”), Pub. L. No. 105-89, 111 Stat. 2115 (codified as amended in scattered sections of 42 U.S.C.) and the Fostering Connections to Success and Increasing Adoptions Act of 2008 (“FCSIAA”), Pub. L. No. 110-351, 110th Cong., 2d Sess., 122 Stat. 3949 (2008). [*357]
The final chapter provides a platform for the discussion of and advisability of allowing American Indian children to participate in their ICWA-controlled custody and adoption proceedings – either directly or through a representative.
In conclusion, CHILDREN, TRIBES, AND STATES: ADOPTION AND CUSTODY CONFLICTS OVER AMERICAN INDIAN CHILDREN is a “must read” for family law scholars seeking an in-depth discussion of the laws effecting and affecting American Indian children.
Severt Young Bear and R.D. Theisz. 2001. To Say “Child,” in Robert Bensen (ed). CHILDREN OF THE DRAGONFLY: NATIVE AMERICAN VOICES ON CHILD CUSTODY AND EDUCATION. Tucson: University of Arizona Press.
Lieutenant Richard Henry Pratt (1840 – 1924): founder and longtime superintendent of the Carlisle Indian Industrial School at Carlisle, Pennsylvania founded in 1879.
FISHER v. DISTRICT COURT, 424 U.S. 382 (1976) (per curiam).
In re N.B. v. GREYEYES, No. SC-CV-03-08, 5 (Navajo April 16, 2008).
© Copyright 2011 by the author, Cynthia H. DeBose.