On the far end of the Trail of Tears was a promise.
—Justice Neil Gorsuch, McGirt v Oklahoma, 140 S. Ct. 2452, 207 L. Ed. 2d 985 (2020)
Indian legal scholars have hailed McGirt as “the most significant Indian Law case of the century.” McGirt held that Muscogee (Creek) reservation boundaries granted by treaty remained intact and as such the state of Oklahoma lacked jurisdiction to prosecute the defendant, Jimcy McGirt, for alleged crimes committed on the Creek Reservation. While at first blush it is a criminal case limited to one tribe, a more expanded look illustrates that it applies to all tribes and, most importantly, that it signals a move by the nation’s highest court that promises made to Indians must be kept rather than broken. The case signals to lower courts as well that authority to break agreements with Indians remains solely within the purview of Congress, and not with the courts.
The Indian Child Welfare Act (ICWA), although it is not a treaty, is an acknowledgement to Indians of the past horrendous wrongs visited upon Indian children and an attempt to make amends for these past misdeeds. Justice Raquel Montoya-Lewis, of the Washington state supreme court, who happens to be the first female Indian ever to sit on a state supreme court, recently stated:
In Native American communities across the country, many families tell stories of family members they have lost to the systems of child welfare, adoption, boarding schools, and other institutions that separated Native children from their families and tribes. This history is a living part of tribal communities, with scars that stretch from the earliest days of this country to its most recent ones. There are virtually no other statutes more central to rectifying these wrongs than the Indian Child Welfare Act (ICWA) 25 U.S.C. §§ 1901-1963 or state statutes like ICWA’s Washington counterpart, the Washington State Indian Child Welfare Act (WICWA). Ch. 13.38 RCW.
Dep’t of Children, Youth & Families v. Greer (In re Dependency of Z.J.G.) (Wash. 2020).
Despite the importance of ICWA, state court judges have sometimes either failed or only begrudgingly followed the mandates of ICWA. However, McGirt makes it clear that judges do not have the option to disregard it. Lawyers should remind jurists of Indian history, the reason for ICWA, and the fact that only Congress, not courts, can change the law when dealing with Indian tribes.
History of Involvement with White Europeans and Indians
American Indians have suffered at the hands of white Europeans since the discovery of the American continent in 1492. This suffering includes deaths due to the spread of disease, wars, starvation, removal, and assimilations. Various justifications ranged from Divine Providence, Manifest Destiny, and the Doctrine of Discovery to a more direct expression: “The only good Indian is a dead Indian.” Despite these methods, both subtle and direct, Indians have persevered. In the 1970s the U.S. government finally reversed its policy of eradication to promote the stability of Indian tribes with the passage of the Indian Child Welfare Act in 1978.
While ICWA had worthy purposes, it was federal legislation dependent in large part for enforcement in state courts. Child welfare was and continues to be primarily a state responsibility. Unfortunately, the child welfare system either ignored or attempted to find exceptions to avoid ICWA mandates. Things were so bad that the Bureau of Indian Affairs issued regulations explaining in some detail what ICWA meant. Bureau of Indian Affairs action resulted in some improvement, but ICWA continued to suffer from the lack of court buy-in. Then came McGirt.
In a 5–4 decision, Justice Neil Gorsuch, a Trump appointee, wrote powerfully and empathetically in McGirt about the plight of Indians, the practices of states in circumventing treaty rights of Indians, and recognizing or rather re-recognizing that only Congress, not states, could “disestablish Indian rights guarantied by treaties.”
This article does a “deep-dive” tracing the mistreatment of Indians, describing why these historical injustices led to the adoption of ICWA, and outlining attempts by state courts to evade the ICWA mandates, and then describes how McGirt has breathed life into federal Indian law, which in turn strengthens ICWA.
Early Arrivals to America Considered Indians “Savages”
From the beginning, British colonizers and later Americans considered Indians less than human and it was their mission to eliminate Indians or at least reduce them.
Before European explorers reached North America, the estimated number of Indians living north of the Rio Grande River varied widely from 1.5 to 20 million. By 1900, there were fewer than 250,000. Today there are 5.2 million. Many died due to disease, primarily smallpox.
Smallpox spread passively, as Indians lacked any “herd immunity,” and actively as famous heroes such as Lord Jeffrey Amherst saw to it under his command that Indians receive blankets inoculated with the virus as a form of chemical warfare. He justified the use to “Extirpate this Execrable Race.” Peter D’Errico, Univ. of Mass., Jeffrey Amherst and Smallpox Blankets.
Supplying alcohol to Indians also hastened their demise. None other than Benjamin Franklin promised rum to Indians to induce them to sign treaties. Franklin wrote, after the conclusion of the negotiations, that it was “the design of Providence to extirpate these savages” using rum as the means as “it has annihilated all the tribes who formerly inhabited the sea-coast.” USHistory.org, The Electric Ben Franklin 57.
Thomas Jefferson, in the Declaration of Independence, also characterized Indians as “merciless savages.” The United States’ attitude toward Indians persisted, and even worsened. Though this attitude slowly changed course, it was not before great suffering was visited on all Indian tribes.
These practices all but eliminated many of the northeastern tribes such as the Algonquins, Mohawks, Mohicans, Hurons, and Iroquois. After the Revolutionary War, America continued its genocidal tactics. With the expansion due to the Louisiana Purchase, available land existed west of the Mississippi River to relocate Indians remaining in the southeast.
Removal of the Five Tribes
As more settlers moved into the southeast and with repurposed troops from the Revolutionary War laying waste to the outnumbered and outgunned Indians, these events led to a series of treaties with the “Five Tribes” known as Cherokee, Choctaw, Chickasaw, Creek, and Seminole. These treaties had the effect of reducing the tribe’s territories.
Still not satisfied with Indians living in the southeast part of the country, Congress passed the Indian Removal Act in 1830 to effectuate the displacement of the Five Tribes. Cherokees fought the removal, contending that their treaties granted them title to the land that was also claimed by the state of Georgia. Georgia disagreed, and with the discovery of gold, Georgians rushed into the Cherokee nation to strip away Cherokee properties.
Cherokees Fight Back in Court, Not on the Battlefield
The Cherokee Nation, rather than going to war, “lawyered up” and sued the state of Georgia in the Supreme Court of the United States. It argued that it had schools, churches, and a constitution, that it farmed the land, and that its members were not savages but civilized and protected by treaties that were the “supreme law of the land.”
In the suit styled as Cherokee Nation v. Georgia, 30 U.S. 1 (1831), Chief Justice John Marshall recognized the Cherokee tribe as a sovereign entity. Chief Justice Marshall reasoned that, based on several treaties the Cherokees had with the British and then with the United States, the Cherokee Nation was a “sovereign and independent state” with a right of self-government. As such, Georgia law could not override treaties. Unfortunately, despite these holdings, the Court dismissed the case for lack of jurisdiction as the Cherokee Nation was not a foreign state but a domestic dependent sovereign and thus the Court declared that it did not have standing to sue.
The Cherokees did not give up and went back to court in another case, Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515 (1832). Georgia arrested Samuel Worcester, a missionary, for living with the Cherokees in violation of Georgia law. Worcester, as an American citizen, had standing and sued Georgia contending it did not have authority in the Cherokee Nation.
Chief Justice Marshall held that Georgia could not legislate in the Cherokee Nation without either the agreement of the Cherokees themselves or in “conformity with treaties, and acts of Congress.” As a result, the Court ordered the release of Worcester.
Defiantly, Georgia refused to follow the order of the highest court in the land and kept Worcester in prison. President Andrew Jackson infamously refused to enforce the order, reasoning that John Marshall had made the order and thus it was up to Marshall and the courts to enforce it, not the executive branch.
As a result, the Cherokees, having received a lesson in separation of powers, realized that winning in the judicial branch did not mean that the executive branch would follow the orders of the highest court and thus they had little future in trying to remain in what was left of its ancestral lands.
As the Choctaws had already begun to remove to what is now the state of Oklahoma, a small group of Cherokees treated with the government to remove as well in the Treaty of New Echota. While the treaty was opposed by most of the tribe, opposition was ineffective, and the Trail of Tears began in earnest. About 16,000 Cherokees were force-marched in detachments of 1,000 each to the Indian territory.
By most estimates 4,000 died along the way, mainly children and the elderly. Daily entries in a journal described the Trail of Tears:
Marched at 8 o’c., A.M., buried Ducks child, Marched at 8 o’c. A.M., Mr. Reese & myself remained behind, and buried a child of Seabolts, Marched at 8 o’c. A. M. halted at Reddix, 3 o’c. P. M., encamped and issued corn & fodder & beef. 16 miles to day. Buried George Killian, [p. 11] and left Mr. Wells to bury a waggoner, (black boy) who died this morning, scarcely room in the wagons for the sick, Buried Nancy Bigbears Grand Child, Joseph Starrs wife had a child last night. Marched at 8 ½ o’c. A. M., Buried Goddards Grand child, Buried Rainfrogs daughter (Lucy Redstick’s child). A Journal of occurrences in conformity with the Revised Regulations No 5. Paragraph 8. kept by B. B. Cannon, Conductor of a Party of Emigrating Cherokee Indians, put in his charge, at the Cherokee Agency East, by Genl. N. Smith, Superintendent of Cherokee removals, on the 13th day of October 1837.
Univ. of Ark., Journal of B.B. Cannon—Cherokee Removal, 1837.
Also seeing the futility of resistance, the Chickasaws, Creeks, and Seminoles also treated for removal to Oklahoma. By 1840, all members of the Five Tribes had moved to Oklahoma, resulting in mass deaths due to starvation and freezing weather along the trail.
McGirt recognized 180 years later that the Indians had kept their promise in the treaties and that the government had to keep its promise as well. The treaties signed by the Five Tribes promised the Indians that no state would have authority over them as they “shall be allowed to govern themselves.” McGirt, 140 S. Ct. at 2459 (citing Treaty With the Creeks, Art. XIV, 7 Stat. 368 (Mar. 24, 1832)).
Of course, Congress has constitutional authority to break promises and treaties with tribes (and has done so 340 times), but states do not have this authority.
After the Civil War, the United States turned its attention to the Plains tribes. General Phillip Sheridan, who was fresh from “burning” the Shenandoah Valley, was sent to replicate these “successes” by destroying not only the Buffalo herds (the primary food supply for Plains tribes) but the tribal members themselves, including the killing of Indian women and children. Sheridan justified his tactics declaring, “The only Good Indian is a Dead Indian.”
Although Sheridan denied making that statement, it became popular with the public at the time and the unofficial military policy toward the Indians until the end of the nineteenth century. None other than future president Teddy Roosevelt expounded on the statement in 1886, conceding that it may have been an overstatement as “only nine out of ten good Indians are dead, and I shouldn’t like to inquire too closely into the case for the tenth.” Betty J. Eadie, Genocide, Holocaust & Discrimination.
Finally, as it became less fashionable to kill Indians, the Indians who were left were either removed to Oklahoma and confined to reservations, where the government supplied them with basic subsistence and little else, or they were punished if they “got off the reservation.” Key Malesky, “Should Saying Someone Is ‘Off The Reservation’ Be Off-Limits?,” NPR, June 29, 2014.
The term “reservation” has a derogatory connotation, but for purposes of Indian law, it has an artful meaning. “Indian country” encompasses “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” McGirt pointed out that states cannot reduce Indian reservations, as only Congress can do so, as federal treaties are the “supreme Law of the Land.” U.S. Const. Art. I, §8; Art. VI, cl. 2.
Tribes viewed reservations this way:
They took us and shoved us in these places, and we were small nations. The legal opinion is they have plenary authority over us, which means absolute authority. It’s a really nice way of saying we have to do what they say because they could kill us. The goal of the government for many, many years was to eradicate Native Americans. If not physically kill them, then eradicate their culture.
Everett Bandy, Quapaw tribal historic preservation officer.
After eradicating the Indians in the northeast, removing the Five Tribes from the southeast, along with another 35 tribes to Oklahoma, and confining the remaining Indians to glorified internment camps known as reservations, the next step to control the Indians was the advent of the Indian Boarding School.
The flagship school was in Carlisle, Pennsylvania, whose founder coined a variation of the Sheridan policy as its mission statement: “Kill the Indian, save the child.” The schools lasted from 1869 to the 1960s. At the Carlisle school alone, 180 Indian children died, never returned to their families, and are still buried on the campus in unmarked graves today.
During this time, the government forcibly sent 83 percent of Indian children, starting at the age of five, to over 367 boarding schools in 30 states. Upon arrival, their hair was cut, their clothes were burned, and they were outfitted in uniforms and whipped if they spoke in their native language. The children suffered physical, sexual, cultural, and spiritual abuse and neglect. To prevent escape during the transport over long distance, authorities designed special child-size handcuffs.
Over this time, the exact number of Indian children who were sent to boarding schools is unknown; what is known is that by 1925, 60,000 children were in boarding schools.
In the darkness of a boarding school night, my mother said she could hear the other kids weeping for their parents. The children were forbidden to speak Lakota by the missionaries. So, they spoke the language in their prayers. A thousand prayers from a thousand lonely hearts.
If parents resisted, the government imprisoned them at Alcatraz for interfering with the education of their children and only released them once they “fully realized the error of their evil ways.” Indian Agent 1st Lieutenant SH Plummer.
The “Scoop” Era
After the Indian boarding schools closed, the Child Welfare League of America—with the help of state governments, churches, and nonprofits—began to fast-track Indian adoptions with a federal grant from the Bureau of Indian Affairs and the U.S. Children’s Bureau. The primary ground for removal of children from their families was poverty and cultural bias. Between 1969 and 1974, 25 to 35 percent of all Indian children were removed from their families due to poverty and alcoholism. Some mothers, while still pregnant, experienced child welfare workers recruiting them to give up their baby once born. A government news release on official stationery from the U.S. Department of Interior read:
One little, two little, three little Indians—and 206 more—are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken the Indian waifs as their own.
Eighty-five percent of children who were removed were placed into nontribal homes. Removal of Indian children exceeded 15.6 percent of the general population. This did not include private adoptions. This period became known as the “1960s Scoop Era.”
The practice of child removal resulted in historical trauma. Removed native children experienced spiritual, emotional, and psychological difficulties resulting in a loss of self-identity and poor self-esteem. Cultural problems arose as native children aged, returned to the reservation, and felt out of place when they realized they could not participate in activities such as dancing at powwows. The trauma also resulted in a higher incidence of suicide, mental health problems, eating disorders, delinquencies, and drug and alcohol dependency.
One tribal member explained, “When you forbid people from speaking their language, you take their children away, and put them in distinct cultural settings, what else do you call it besides cultural genocide?
Congress Eventually Changes Course and Enacts the Indian Child Welfare Act
Slowly the United States realized that the efforts to eradicate Indians either physically or culturally had proven unsuccessful. This was due not so much to a change of heart but to an awareness that, despite its best efforts, Indians were not going away.
To atone for these past wrongs, Senator James Abourezk of South Dakota introduced the Indian Child Welfare Act in 1978. ICWA mandated protections for Indian children, including a higher burden of proof before an Indian child could be adjudicated dependent or have parental rights terminated. In addition, ICWA required the states to notify tribes of pending cases that involved Indian children. Despite these best efforts to protect Indian children, they are still 3 times more likely than white children to be in foster care, nationwide. In South Dakota, they are 9 times more likely to be in foster care. In Minnesota, they are 20 times more likely to be in foster care. (Statistics compiled from the National Council of Juvenile and Family Court Judges using Adoption and Foster Care Analysis and Reporting System data.)
Regrettably, some state courts disingenuously refuse to comply with ICWA jurisdictional requirements. For example, some agencies argue that “emergency custody” is not a “placement”; thus, ICWA procedural mandates do not apply. Although called emergency detention and designed to be temporary, oftentimes placement continues well into the future and consequently becomes a de facto, permanent placement. (California ICWA Compliance Task Force Report (2016)). Lawyers should be on guard to avoid these dangers that interfere with the implementation of ICWA requirements.
To clear up these and other misinterpretations of ICWA, the Bureau of Indian Affairs adopted regulations in 2016 mandating that at the beginning of any child dependency hearing, including shelter hearings, that a court was to inquire as to whether the child was Indian or not. ICWA defines an Indian child as a member of a federally recognized tribe or a child who is eligible for membership in a tribe and whose parent is a member of a tribe. Some states such as California are very proactive and initiate contact with the tribe as soon as they conclude a hotline call.
Recently, the Washington state supreme court affirmed this requirement in In re Z.J.G. (Wash. 2020). Ruling for the unanimous majority, Justice Raquel Montoya-Lewis wrote that even though the state of Washington had at one time followed the Indian child exception and other such practices to thwart ICWA, such a wrong could no longer be perpetuated, citing McGirt. Justice Montoya-Lewis noted that a main focus of ICWA was to reverse the state policy of “genocide of Native people, through the removal of children” based on the boarding school mission statement, “Kill the Indian and Save the Man.” In re Z.J.G.
Justice Gorsuch, in writing McGirt, relied on a textualist or strict constructionist approach to interpret the actions of Congress as it is the function of the Court to “ascertain and follow the original meaning of the law before us.” McGirt, 140 S. Ct. at 2468 (citing his first opinion, New Prime Inc. v. Oliveira, 139 S. Ct. 532, 202 L. Ed. 2d 536 (2019)). “That is the only ‘step’ proper for a court of law.”
Using this approach, Justice Gorsuch ruled that states cannot treat Indian statutory rights as less valuable than others. Simply put, usual state practices of undermining federal legislation favorable to Indians is nothing short of impermissible statutory construction and to allow such “would be the rule of the strong, not the rule of law.” In particular, as stated by the Washington state supreme court, when construing laws regarding Indians, any ambiguities are to be resolved liberally in favor of the Indians. In re Dependency of Z.J.G. (Wash 2020).
ICWA indicates that tribal court should have concurrent jurisdiction if not sole jurisdiction in Indian land in matters involving Indian children. As Chief Justice John Marshall held, Indian tribes are “distinct political communities, having territorial boundaries, within which their authority is exclusive which is not only acknowledged, but guarantied sic by the United States.” McGirt, 140 S. Ct. at 2477 (citing Worcester v. Georgia, 6 Pet. 515, 557, 8 S.Ct. 483 (1832)). Federal law prevails over the usual state practices and McGirt clearly states that this is the case.
Because ICWA is federal legislation, states cannot simply ignore it with the belief that if they do “so long enough and with sufficient vigor” they could in effect amend the law. McGirt stated that this would be unjust and reward wrong and fail those in the right.
Applying McGirt to ICWA: Practical Advice
As a state court trial judge in Oklahoma for more than 14 years, I heard many ICWA cases. At the beginning of my tenure, I would inquire in every case as to whether or not the children were Indian children. Not surprisingly, I would often learn that they were Indian, even though the state had not been aware of their status. Oftentimes, even the parent’s privately retained attorneys would learn for the first time that their client was an Indian. Upon doing so, after a brief client consultation, the attorney would often announce that the client was willing to waive any ICWA protections.
I would advise that this was not permissible, nor was it permissible for an Indian child to waive ICWA. As a result, I ordered the state to notify the tribe and report back in one week. One parent’s attorney appeared at the next court hearing, apologizing for not knowing more about ICWA and stating that quite frankly he and his client were most impressed with tribal (Chickasaw) social services and that, as far as they were concerned, with no offense to the state of Oklahoma, they felt the tribe was doing a much better job in child welfare than the state ever did. He went on to say that it is too bad that all cases, Indian and non-Indian, alike do not follow ICWA as it is the “gold standard” of child welfare practices.
Practitioners in dealing with judges who are less than enthusiastic in complying with ICWA should remind the court that it is federal law, and as with Indian treaties, it would take an act of Congress to change it. Lawyers for children should remind the court of the underlying background of Indian history that ICWA sought to rectify. In other words, as decreed in McGirt, promises made should be promises kept, especially in court.
In October 2018, a federal district court in Texas broke with precedent and declared ICWA unconstitutional. A three-judge panel of the Court of Appeals for the Fifth Circuit reversed. The Fifth Circuit granted en banc review and heard arguments on January 22, 2020. A decision is expected anytime. Brackeen v. Bernhardt, No. 18-11479 (5th Cir. 2019).