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January 01, 2019 Feature

Best Interest of the Child: A Tribal Judge’s Perspective

By Judge Lisa L. Atkinson
“A great general has said that the only good Indian is a dead one, and that high sanction of his destruction has been an enormous factor in promoting Indian massacres. In a sense, 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.”
—Carlisle Indian School founder Capt. Richard H. Pratt1
“The Hoh Indian Tribe recognizes that there is no resource that is more vital to the continued existence and integrity of the Hoh (and others) Indian Tribe than our children and that we have a direct interest in protecting our Indian children who are members of, eligible for membership, or descendants of the Hoh Indian Tribe. . . .”
—Title 6 of the Hoh Youth Code

A Brief History Lesson

To understand what “best interest of the child” means from a tribal perspective, a brief history lesson is instructive.2 This history includes the United States’ government-sanctioned removal of Indian children, which provides some insight into why tribes work so hard to retain tribal children within tribal communities to the greatest extent possible. Two major policies and programs used to remove Indian3 children from their homes were the establishment of boarding schools, beginning in 1860, and the Indian Adoption Project of 1958.

The establishment of Indian boarding schools was, in some instances, a requirement negotiated in treaties with certain tribes.4 Despite being a feature in some treaties, there was a fairly significant resistance to sending children away to boarding schools, particularly schools far from the children’s reservation. In some instances, the police would remove children; in others, the local Indian agent (government official placed on the reservation to oversee the distribution of treaty-secured goods and services) would withhold rations until parents enrolled their children in these schools. The number of children who died during the Boarding School Era (roughly the second half of the nineteenth century and first half of the twentieth) is unknown (from disease, abuse, and/or neglect). Information continues to be revealed today regarding instances of abuse and neglect that occurred within these settings, including the discoveries of mass graves on or near these sites.5 Boarding schools were designed to erase all aspects of tribal life and culture, teach English and trades, and eventually return the children home to live in a manner that met with the approval of the dominant non-Native culture, with the hope of changing the cultures of the tribes, in the form of assimilation.

The Indian Adoption Project of 1958 (which lasted until approximately 1967) was a partnership between the Bureau of Indian Affairs and the nonprofit Child Welfare League of America, in collaboration with private adoption agencies, to adopt Indian children out into non-Indian homes. The purpose of the project was purportedly “an effort to assimilate them into mainstream culture and offer them better lives outside impoverished reservations.”6 The orchestrators of this project believed that their altruistic goals of improving the lives of Indian children could only be accomplished by adopting them out of tribal communities.7 For an excellent journaled article with more information on the Indian Adoption Project and its successor Adoption Resource Exchange of North America (ARENA) project, please refer to Margaret D. Jacobs’ “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s.”8

In response to these efforts to “save” the Indian child (which were later largely acknowledged as failures9) by removing her from her family and community, in the 1960s, tribal activists began demanding that there be federal protections put into place for the reduction of the unwarranted and unnecessary removal of Indian children from their families and their communities. This led to the passage of the Indian Child Welfare Act in (ICWA) 1978.10

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.11

ICWA directs nontribal courts on matters involving Indian children who are subjects of dependencies, guardianships, and adoptions. ICWA’s provisions are not discretionary in nature, and many states have since adopted their own versions of ICWA that, in some cases, provide even greater protections for matters involving tribal children within their court systems than the original statute required. Currently, there is a troubling and concerted effort from some private organizations (including for-profit adoption agencies) to have ICWA invalidated.12

A Changing Tide

While there have been many federal programs, policies, and laws used to remove Indian children over more than a century (and basically only one to reduce removal), there is a critical body of laws that have increasingly been used to keep tribal children home or to bring them home: tribal laws and customs. Tribal laws and customs may be in written form, or they may be oral; they may be similar to “western” laws (i.e., codified, with Resolutions and Legislative History), or they may be much more traditional. It is up to each tribe to determine what is most appropriate for their community.

Many written tribal codes regarding the care and treatment of children have a “Findings” or “Purpose” paragraph similar to the Hoh Tribal Code quoted on page 6. Nearly all tribal codes cite the “unwarranted break-up of Indian families” as a major purpose or guiding principle in their dependency, children’s, or domestic relations codes.13

In most every written tribal code for tribes exercising jurisdiction over domestic relations, dependencies, and/or delinquencies, there is a section regarding the “best interest of the child.” For some tribes, “best interest of the child” is spelled out within the code itself or established through case law. For others, it is much more subjective and may be determined by cultural practices, by teachings from elders, or through other traditional means. The latter is much more difficult to reduce to an article (and, in many cases, not appropriate for public dissemination), so the focus here will be on the former—codes, procedures, and case law.

The Oneida Tribal Code (O.C.), under Title 7 (“Children, Elders, and Family”), Chapter 705, section 705.1-2 states, “It is the policy of this law to create fair and equitable legal custody, physical placement, and visitation orders based on the facts surrounding each case and the best interest of the child.” Best interest is defined as

“Best interest of the child” means the interest of a child to:

(1) have a full, meaningful, and loving relationship with both parents and family;

(2) be free from physical, sexual, and emotional abuse;

(3) receive appropriate medical care;

(4) receive appropriate education;

(5) be raised in conditions which maximize the chances of the child becoming a contributing member of society; and

(6) be raised in an environment that is respectful of the child’s race(s), culture(s), and heritage(s).14

The Tulalip Tribal Code (TTC), Title 4, states that “[T]he best interest of the child shall be the focus whenever making decisions regarding a child. Best interest determinations are generally made by considering a number of factors related to the child’s circumstances and the parent, guardian, or custodian’s circumstances and capacity to parent, with the child’s ultimate safety and well-being being the paramount concern.”15

The very name of Tulalip Tribes’ child welfare department demonstrates the importance of children in their community. The department, formerly known as the Indian Child Welfare Department, was renamed to “beda?chelh” a number of years ago. “In lushootseed, the traditional language of Coastal Salish People, the word beda?chelh means, “our children.” It is significant that this concept is depicted in a single word because, traditionally, children were considered to be sacred gifts to the entire community. beda?chelh’s mission further demonstrates the commitment to the best interests of the child. ‘MISSION: Provide a strong and healthy foundation, in the best interest of the child, to achieve an immediate and lasting positive change in their life.’”16

Renowned Judge Abby Abinanti, Chief Justice of the Yurok Tribal Court, has written extensively on the view of children within tribal societies. In her article “Passports for Native Children,” published by the Tribal Law and Policy Institute in 2006, she writes that although there is a wide diversity between and among Native cultures,

early accounts reveal numerous cross-cultural similarities in Native American perspectives on child rearing. These include allowing children to learn through their own observations; relying strongly on nonverbal cues rather than verbal directions; engaging the spiritual world in the child-rearing process by praying, chanting, and sing[ing], as well as by conferring special names to give children guidance and power; educating children for their future roles by including them from infancy in all social, economic, and ritual activities; giving children the same range of freedom of behavior as adults; using stories to provide an understanding of the world and its relationships, both those between individuals and that between man and nature; respecting the individuality and desires of children to the same degree that those are respected in adults; teaching children their responsibilities to each member of their kinship group; allowing children to fulfill their physical needs such as sleeping, eating, and physical activity with minimal adult direction or restraint; impressing children with their roles in society through marking their passage into new stages of development with public ceremonies, especially at puberty.

Underlying these characteristics is a view of children, from birth, as full participants in society, with standing equal to that of adults. This attitude is a reflection of the religious orientation of Native Americans, in which all things in nature are accorded equal respect, be they inanimate or animate. Consequently, children were not expected to be supervised by adults but to be free like their elders, their freedom limited only by social obligations. As a result, child-care practices emphasized responsiveness to the wishes of the child. For example, children were usually toilet trained when they were ready, and not according to a schedule based on adult needs, and in some societies children nursed for as long as five to seven years. Thus, Native Americans allowed children to fit themselves into the social order, rarely using corporal punishment or other coercive methods to force conformity.17

In essence, children belong to the community and are essential to the continuation of culture and traditions. Keeping them in the community is essential to their emotional, cultural, physical, and spiritual growth. And above all, this must be done in a manner that protects and nurtures children in safe and loving environments.

Putting Codes and Procedures into Practice

Tulalip Tribal Code provides that “whenever a ‘best interests’ determination is required, the following factors shall be considered in the context of the child’s age and developmental needs:

(1) The physical safety and welfare of the child; including food, shelter, health, and clothing;

(2) The child’s sense of attachments, including: where the child actually feels love, attachment, and a sense of being valued (as opposed to where adults believe the child should feel love, attachment, and a sense of being valued);

(3) The child’s need for permanence, which includes the child’s need for stability and continuity of relationships with parent figures, siblings, and other relatives;

(4) The child’s background and community ties, including familial, cultural, friend, school, and religion;

(5) The least disruptive placement alternative for the child;

(6) The recognition that every family and child is unique;

(7) The exposure to violence in the home; and

(8) The risks associated with being in out-of-home care.”18

Many of these factors look similar to what you might find in state laws. How, then, does the context differ in tribal court? The answer is they are viewed through the lens of community and culture. It is not uncommon in tribal communities for a parent who may be struggling with mental health, addiction, or other issues to ask a family member to care for his/her child. These arrangements are often informal, and the court may not get involved. If the court does become involved, then a “best interest” determination will likely be required. From the bench, tribal judges must not only apply the laws as written but consider that the impacts of placing a child outside of the community, even when it is clearly in the best interest of the child, could have negative effects on the child and the community if care is not taken to maintain the child’s connection to biological family (as appropriate) and the community.

One option available in tribal courts is to require that non-Native placements (or if awarding custody in a domestic relations matter to a non-Native parent) agree to a culture contract. A culture contract may require that the placement or non-Native parent brings the child back to the community for important cultural and spiritual events, as well as for family events (as appropriate). Culture contracts can be incorporated into the underlying court order, with admonitions that failure to honor the contract could result in remedies including contempt of court, or possible removal of the child from the placement home. Given that tribal communities are usually very close-knit, persistent violations of a culture contract would likely be brought to the court’s attention quickly, and an appropriate remedy could be put into place without the child missing too many opportunities to participate in her culture.

Another option could be providing funding and support for the child to participate in culture camps, language camps, or other events designed for tribal children to learn more about their history, culture, traditions, practices, and language. Some of these programs teach children about traditional hunting and gathering, including learning when certain foods can be found and harvested, when trees can be tapped for syrup or stripped for bark, and when the best time is to take animals for food and fur so that the resource won’t be depleted.

Conclusion

Children are the linchpins connecting the past to the future. Children in tribal communities are an integral part in maintaining, promoting, and preserving tradition and culture necessary for tribes to continue to maintain our unique and important place in this country. Keeping the best interests of the Indian child in mind while applying the laws of the tribe is key to achieving this goal and to ensuring well-adjusted and culturally grounded children who will become the next generation of valuable community members and leaders.

All opinions expressed in this article are solely those of the author and not purported to represent the position(s) of any specific tribal nation or entity.

Endnotes

1. Quotation from the founder of Carlisle Indian School, given at an 1892 conference. History Matters, http://historymatters.gmu.edu/d/4929 (last visited Aug. 27, 2018).

2. For additional reading, the following books (historical fiction and nonfiction) provide additional background and foundation for further understanding the history of the treatment of Indians, generally, and Indian children. Arnold Krupat, Changed Forever, Vol. I: American Indian Boarding-School Literature (2018) (ISBN-13: 9781438469157); Trace DeMeyer-Hentz & Patricia Cotter-Busbee, Two Worlds: Lost Children of the Indian Adoption Projects (2012) (ISBN-13: 978-1479318285); David Grann, Killers of the Flower Moon: The Osage Murders and the Birth of the FBI (2017) (Hardcover; ISBN-13: 978-0385534246).

3. The terms “Indian,” “native,” and “tribal” are used interchangeably throughout this article. The legal term has been “Indian” since the U.S. Constitution was adopted. U.S. Const. art. I, § 8, cl. 3.

4. The first reported on-reservation Indian boarding school was at Fort Simcoe on the Yakama Indian Reservation. The Treaty with Yakama stipulated as one of its terms that the federal government would provide a school, superintendent, and two teachers. Treaty with the Yakama, art. 5, 12 Stat. 951 (1855). The first off-reservation boarding school was Carlisle Indian School in Pennsylvania, established in 1879.

5. See, e.g., Jeff Gammage, “Those Kids Never Got to Go Home, Philly News (Mar. 13, 2016), http://www.philly.com/philly/news/Those_kids_never_got_to_go_home.html; Marc Dadigan, Unmarked Graves Discovered at Chemawa Indian School, Al Jazeera (Jan. 3, 2016), https://www.aljazeera.com/indepth/features/2016/01/unearthing-dark-native-boarding-school-160103072842972.html; Four Children Who Died at Indian Boarding School Being Returned to Families, Indianz.com (June 15, 2018) https://www.indianz.com/News/2018/06/15/four-children-who-died-at-indian-boardin.asp.

6. Karen Brooks, “Baby Veronica” Adoption Case Re-opens Wounds for Native Americans, Reuters (Sept. 24, 2013), https://www.reuters.com/article/us-usa-southcarolina-adoption-nativeamer/baby-veronica-adoption-case-re-opens-wounds-for-native-americans-idUSBRE98N16P20130924?i=3&irpc=932.

7. “One can no longer say that the Indian child is the ‘forgotten child,’ [Arnold] Lyslo proudly declared upon the project’s completion.” Arnold Lyslo was the director of the Indian Adoption Project. https://pages.uoregon.edu/adoption/topics/IAP.html.

8. Margaret D. Jacobs, Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s, 37 Am. Indian Q., No. 1-2 (SPECIAL ISSUE: Native Adoption in Canada, the United States, New Zealand, and Australia) 136-159 (Winter/Spring 2013).

9. Statement by Child Welfare League Executive Director Shay Bilchik (2001): “No matter how well intentioned and how squarely in the mainstream this was at the time,” he said, “it was wrong; it was hurtful; and it reflected a kind of bias that surfaces feelings of shame.”

10. 25 U.S.C. § 1901 et seq.

11. Id. § 1902.

12. On October 4, 2018, the U.S. District Court for the Northern District of Texas in Brackeen v. Zinke and Cherokee Nation, Civil Action No. 4:17-cv-00868-O, entered an Order granting in part and denying in part motions for summary judgment that asserted that certain sections of the ICWA, and the corresponding regulations, are unconstitutional. This ruling is only precedential for the Northern District of Texas and is currently under appeal.

13. See, e.g., Navajo Nation Code Ann., tit. 9, subch. 1, ch. 11, sec. 1101(D); Kenaitze DR Code, ch. 1, sec. 1; Hopi Children’s Code, ch. II, A. Purpose, (1) “preserve the unity of the family.”

14. 7 O.C. § 705.3-1(a).

15. TTC § 4.05.040.

16. beda?chelh, Tulalip Tribes, https://www.tulaliptribes-nsn.gov/Home/Government/Departments/bedachelh.aspx (last visited Aug. 29, 2018).

17. Abby Abinanti, Passports for Native Children: A Best Practice Approach for Tribal Advocates Working with Native Children Who Have Suffered Abuse (Tribal Law & Pol’y Inst. 2006).

18. TTC § 4.05.040.

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Judge Lisa L. Atkinson

Judge Lisa L. Atkinson (N. Cherokee/Osage) has been a tribal court judge for the past 17 years, having served as a chief judge, associate judge, presiding judge, appellate justice, and/or hearings officer in nearly 40 tribal communities. She also maintains a private law practice, focusing on estate planning and probate, including Indian wills and trusts. Judge Atkinson may be reached at [email protected].