Law | Opinion

Lorie Graham and Kathryn Fort: The truth about Indian children

Thursday, June 25, 2015

Indian children in South Dakota. Photo from Lakota People's Law Project / Facebook

Professor Lorie Graham and attorney Kathryn E. Fort discuss the need for truth and reconciliation for Indian children:

Forcible removal of indigenous children from their families dates back to colonial times, when missionaries set out to “Christianize” and “civilize” Indian children under the guise of educating them. The federal government continued these practices, establishing boarding schools around the country, such as the Carlisle Indian Industrial School in Pennsylvania. This school was founded in 1879 by Army Captain Richard Henry Pratt, who is well known among indigenous peoples for his brutal methods of “civilizing” Indian children. The destructive intent of Pratt and other federal officials is evident in his famous statement that “A great general has said that the only good Indian is a dead one. . . In a sense, I agree with the sentiment, but only in this: that all Indian there is in the race should be dead. Kill the Indian, in him, and save the man.”
In the mid-1900s, other mechanisms beyond the federal boarding school were used to sever a child’s ties with her tribal community, such as the 1958 BIA-sponsored Indian Adoption Project. By 1974, when the U.S. Senate convened a special hearing on the Indian child welfare crisis in this country, 25-35 percent of all indigenous children were being systematically removed from their homes by nontribal public and private agencies. According to Congress, “child welfare agencies failed to recognize the essential tribal relations of Indian people and the culture and social standards prevailing in Indian communities and families.” These findings led to the passage of the 1978 Indian Child Welfare Act (“ICWA”), groundbreaking legislation designed to protect Indigenous children, their families, and tribes. Yet as a matter of practice, the law has been misconstrued, misapplied, and at times completely ignored.
To address these shortcomings, the federal government recently enacted new guidelines and proposed new regulations to ensure nationwide uniformity in the interpretation of ICWA. However, this federal commitment is under attack by some who claim the guidelines do not address the “best interests” of Indian children. But what these legal challenges fail to recognize is that the “best interests of Indian children” is at the heart of ICWA. Congress recognized that there was a need for minimum federal standards to counter abusive child welfare practices and the negative consequences that those practices have on Indigenous children, their families and tribes.
As First Lady Michelle Obama recently noted, “given this history, we shouldn’t be surprised at the challenges that kids in Indian Country are facing today. And we should never forget that we played a role in this. Make no mistake about it – we own this.”

Get the Story:
Lorie Graham and Kathryn E. Fort: If truth be told (The Hill 6/25)

Federal Register Notices:
Regulations for State Courts and Agencies in Indian Child Custody Proceedings (March 30, 2015)
Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (February 25, 2015)