Tribal Sovereignty and the Indian Child Welfare Act
Tribal Sovereignty, and The
Tribal Sovereignty, and The
Indian Child Welfare Act
Indian Child Welfare Act
June 4, 2019
Stephen L. Pevar
Tribal Sovereignty: Uniquely Important
Indian tribes have many rights, but the single
most important—and most cherished—is the
right of tribal sovereignty, the right to be self-
governing.
What is "Sovereignty"?
Dictionary definition: A sovereign
government is a government that is vested
with “independent and supreme authority.” It
has the power to make its own laws, and to
then enforce those laws.
Under a dictionary definition, sovereignty is
“all or nothing.”
Are Tribal Governments Sovereign?
Three possible answers:
1. Yes: Indian tribes are sovereign governments
and the United States must relate to them in that
manner, same as with England and France.
Are Tribal Governments Sovereign?
2. No: Indian tribes are “conquered” nations.
As a result, they have lost all of their sovereign
authority.
3. Yes and No: Indian tribes are “quasi-
sovereign,” possessing “attributes of
sovereignty.” Indian tribes retain some of their
inherent powers of self-government, but tribes
are subject to the supreme (“plenary”) power of
the United States.
Are Tribal Governments Sovereign?
(cont.)
The Supreme Court developed this middle ground in a line of cases
beginning in the 1820s. As summarized in
United States v. Lara
,
541 U.S. 193 (2004):
(1) Congress has plenary power over Indian tribes: “The
Constitution grants Congress board general powers to legislate in
respect to Indian tribes, powers that we have consistently described
as ‘plenary and exclusive.’”
(2) However, those rights not removed from tribes remain as part
of their inherent authority. “Indian tribes are unique aggregations,
possessing attributes of sovereignty over both their members and
their territory.”
Are Tribal Governments Sovereign?
(cont.)
The plenary power doctrine is firmly established in federal
law. All 3 branches of the federal government accept it.
However, the doctrine has been extensively criticized. After
all, there is
nothing
in the Constitution that authorizes the
federal government to legislate over Indian tribes.
The Supreme Court relies primarily on the Commerce Clause,
but that Clause says only that Congress shall have the power
“To regulate commerce with foreign Nations, and among the
several States, and with the Indian tribes.” Art. I, Sec. 8, Cl. 3.
That language confers no greater power over Indian tribes than
over foreign Nations.
Criticism of the Plenary Power Doctrine:
Might Doesn't Make Right
Criticism of the Plenary Power Doctrine:
Might Doesn't Make Right
(cont.)
“The plenary power was seemingly plucked out of thin
air by the Supreme Court.”
Walter Echo-Hawk,
In the Courts of the Conqueror: The Ten Worst Indian
Law Cases Ever Decided
(2010) at page 163.
The plenary power doctrine was adopted by the
Supreme Court to justify “federal land acquisition and
power in Indian affairs.”
Frank Pommersheim,
Broken Landscape: Indians, Indian Tribes, and the
Constitution
(2009)
at page 140.
Three Principles Regarding
Tribal Sovereignty
1. Indian tribes
do
retain certain inherent powers of
a sovereign.
2. Congress, however, has the power to limit or
abolish tribal authority.
3. In addition to the express limits that Congress
has placed on tribal powers, there are certain
“implied” limits, especially concerning non-Indians.
First Principle: Indian Tribes Retain
Inherent Authority
1.
Worcester v. Georgia
, 31 U.S. 515 (1832).
“Indian nations had always been considered as distinct,
independent political communities, retaining their original
rights, as the undisputed possessors of the soil from time
immemorial. . . .The Cherokee nation, then, is a distinct
community, occupying its own territory, with boundaries
accurately described, in which the laws of Georgia can
have no force, and the citizens of Georgia, have no right
to enter, but with the assent of the Cherokees themselves,
or in conformity with treaties, and with the acts of
Congress.”
First Principle: Indian Tribes Retain
Inherent Authority
(cont.)
2.
Talton v. Mayes
, 163 U.S. 379 (1896).
“It cannot be doubted, as said in
Worcester
, that . . .
‘The Indian nations had always been considered as
distinct, independent political communities, retaining
their original natural rights.’ . . . [Because] the powers
of local self-government enjoyed by the Cherokee
Nation existed prior to the constitution, they are not
operated upon by the fifth amendment.”
1.
Worcester v. Georgia
, 31 U.S. 515 (1832).
2.
Lone Wolf v. Hitchcock
, 187 U.S. 553 (1903).
Second Principle: Congress Can Limit or
Abolish Tribal Powers
Third Principle: Implied Limits on Tribal
Power over Non-Indians
Oliphant v. Suquamish Indian Tribe
, 435 U.S.
191 (1978).
“Indian tribes are prohibited from exercising
both those powers of autonomous states that are
expressly terminated by Congress and those
powers inconsistent with their status.”
“[Indian tribes do not] retain the power to try
non-Indians according to their own customs and
procedure.”
Summary
(cont’d)
“Indian tribes are neither states, nor part of the federal
government, nor subdivisions of either. Rather, they
are sovereign political entities possessed of sovereign
authority not derived from the United States, which
they predate. [Indian tribes are] qualified to exercise
powers of self-government . . . by reason of their
original tribal sovereignty.”
National Labor Relations Board v. Pueblo of San Juan
, 276 F.3d 1186,
1192 (10
th
Cir. 2002).
Summary
Some tribal powers have been expressly
limited or abolished by Congress, and others
have been “lost” by implication. But Indian
tribes still have vast, inherent powers,
particularly over their members and territory.
Congress has passed laws that encourage
and affirm the exercise of tribal powers, and
one of these is the Indian Child Welfare Act
of 1978.
I
C
W
A
:
H
i
s
t
o
r
i
c
a
l
B
a
c
k
g
r
o
u
n
d
Beginning in the mid-1800s, public and private
agencies, with the federal government’s consent,
routinely removed Indian children from their homes.
A congressional investigation in the 1970s revealed:
1.
25-35% of all Indian children in the US were being
taken from their families by state welfare agencies.
2.
In some states, Indian children were 7 to 8 times
more likely to be removed than white children.
3.
The vast majority of these Indian children were
placed in non-Indian homes.
H
i
s
t
o
r
i
c
a
l
B
a
c
k
g
r
o
u
n
d
(
c
o
n
t
.
)
4.
State judges and social workers were often
prejudiced against Indians and ignorant of tribal
values and customs. Congress found that state
officials “have often failed to recognize the . . .
cultural and social standards prevailing in Indian
communities and families.” --
25 U.S.C. §1901
5.
These removals were disastrous not only for many
Indian children and their families but also for their
tribes. Tribes were being robbed of their youth.
I
C
W
A
’
s
P
u
r
p
o
s
e
Congress passed ICWA to create “minimum Federal
standards for the removal of Indian children from their
families and the placement of such children in foster or
adoptive homes.” --
25 U.S.C. §1902
ICWA contains protections for both Indian families
and
Indian tribes. “Congress was concerned not solely about
the interests of Indian children and families, but also
about the impact on the tribes themselves of the large
numbers of Indian children adopted by non-Indians.”
--
Mississippi Band of Choctaw Indians v. Holyfield
, 490 U.S. 30, 49 (1989)
I
C
W
A
:
M
a
j
o
r
P
r
o
v
i
s
i
o
n
s
1. If the Indian child resides on an Indian
reservation or has been made a ward of the
tribal court, the tribal court has
exclusive
jurisdiction over the child in all custody matters.
State courts may not adjudicate these cases
unless expressly conferred that authority by
Congress.
--25 U.S.C. § 1911(a).
M
a
j
o
r
P
r
o
v
i
s
i
o
n
s
(
c
o
n
t
.
)
2. If the child resides
off
the reservation, the state
court and the tribal court have concurrent (shared)
jurisdiction. If the proceeding begins in state court,
the court must notify the child's parents and tribe,
and they each have a right to intervene in the
proceeding.
--25 U.S.C. §§1912(a), 1911(c) respectively.
M
a
j
o
r
P
r
o
v
i
s
i
o
n
s
(
c
o
n
t
.
)
3. In all cases in state court, if the tribe or a parent
requests it, the court must transfer the case to tribal
court unless a parent objects or good cause exists
to deny the request.
--25 U.S.C. § 1911(b).
M
a
j
o
r
P
r
o
v
i
s
i
o
n
s
(
c
o
n
t
.
)
4. As the tribal notice and the transfer provisions
indicate, although jurisdiction is concurrent, it is
“presumptively tribal.”
Holyfield
, 490 U.S. at 36.
Indian tribes have
independent
rights under ICWA.
Thus, they have rights even when both parents
want to relinquish custody of their child voluntarily.
M
a
j
o
r
P
r
o
v
i
s
i
o
n
s
(
c
o
n
t
.
)
5. If the case remains in state court, the court may
not terminate parental rights without proof “beyond
a reasonable doubt” (or place the child in foster
care without “clear and convincing evidence”) that
continued custody by the child's family “is likely to
result in serious emotional or physical damage to
the child.” (Thus, this is
not
a “best interest of the
child” standard.)
--25 U.S.C. §1912(f) and (e), respectively.
M
a
j
o
r
P
r
o
v
i
s
i
o
n
s
(
c
o
n
t
.
)
6. If the child's parents are indigent, they have a
right to a court-appointed attorney. Separate
counsel must be appointed for the child when the
best interests of the child require it.
--25 U.S.C. § 1912(b).
M
a
j
o
r
P
r
o
v
i
s
i
o
n
s
(
c
o
n
t
.
)
7. Before a state court can remove an Indian child
from the home for placement in either foster care or
for adoption, testimony from “qualified expert
witnesses” (QEW) must be submitted on the issue
of whether continued placement in the home is
likely to cause serious emotional or physical injury
to the child.
--25 U.S.C. § 1912(d).
M
a
j
o
r
P
r
o
v
i
s
i
o
n
s
(
c
o
n
t
.
)
8. An Indian child may not be removed from the
home for foster care or for adoption unless it is
proven that “active efforts have been made to
provide remedial services and rehabilitative
programs designed to prevent the breakup of the
Indian family and that these efforts have proved
unsuccessful.”
--25 U.S.C. § 1912(d).
M
a
j
o
r
P
r
o
v
i
s
i
o
n
s
(
c
o
n
t
.
)
9. Before a state court can place an Indian child in
a non-Indian adoptive home, the court must give a
placement preference to, first, the child's extended
family, second, other members of the child's tribe,
and third, other Indian families, unless good cause
exists to ignore this placement hierarchy. A similar
hierarchy is imposed in foster care placements
.
--25 U.S.C. §§ 1915(a) and (b), respectively.
M
a
j
o
r
P
r
o
v
i
s
i
o
n
s
(
c
o
n
t
.
)
10. Tribal court custody decisions are entitled to
the same “full faith and credit” as state court
custody decisions, meaning that they normally must
be respected and enforced by other courts.
--25 U.S.C. § 1911(d).
M
a
j
o
r
P
r
o
v
i
s
i
o
n
s
(
c
o
n
t
.
)
11. The state must keep accurate records of all
Indian child placements to which ICWA applies and
make them available to the federal government and
the tribe. In addition, when an adopted Indian child
becomes eighteen years old, the state must provide
the child upon his or her request with the names
and tribal affiliation(s) of the child's biological
parents.
--25 U.S.C. §§ 1915(e), 1917, respectively.
M
a
j
o
r
P
r
o
v
i
s
i
o
n
s
(
c
o
n
t
.
)
12. Whenever a child is removed by state officials
in an emergency situation, a hearing must be held
soon thereafter and the child must be returned to
the parents unless continued removal is “necessary
to prevent imminent physical damage or harm to
the child.” Thus, the state’s “best interests of the
child” standard does not apply in emergency
removals.
--25 U.S.C. §1922.
S
u
m
m
a
r
y
Thus, ICWA is a remedial law designed to protect
Indians
and
tribes. Among other things, ICWA
gives tribal courts exclusive jurisdiction when the
child lives on the reservation. When the child lives
off the reservation, there is “concurrent but
presumptively tribal jurisdiction,” the Supreme Court
said in
Holyfield
.
490 U.S. at 36.
Even when a custody case remains in state court,
the tribe has a right to intervene, and placement of
the child is governed by ICWA’s requirements.
Tribal sovereignty is a fundamental right for Indian tribes, allowing them to be self-governing. The concept of sovereignty entails independent and supreme authority to make and enforce laws. This article explores whether tribal governments are sovereign entities, presenting different viewpoints and the Supreme Court's stance on the matter.
Download Presentation
Please find below an Image/Link to download the presentation.
The content on the website is provided AS IS for your information and personal use only. It may not be sold, licensed, or shared on other websites without obtaining consent from the author. Download presentation by click this link. If you encounter any issues during the download, it is possible that the publisher has removed the file from their server.
E N D
Presentation Transcript
Tribal Sovereignty, and The Indian Child Welfare Act June 4, 2019 Stephen L. Pevar
Tribal Sovereignty: Uniquely Important Indian tribes have many rights, but the single most important and most cherished is the right of tribal sovereignty, the right to be self- governing.
What is "Sovereignty"? Dictionary definition: A sovereign government is a government that is vested with independent and supreme authority. It has the power to make its own laws, and to then enforce those laws. Under a dictionary definition, sovereignty is all or nothing.
Are Tribal Governments Sovereign? Three possible answers: 1. Yes: Indian tribes are sovereign governments and the United States must relate to them in that manner, same as with England and France.
Are Tribal Governments Sovereign? 2. No: Indian tribes are conquered nations. As a result, they have lost all of their sovereign authority.
Are Tribal Governments Sovereign? (cont.) 3. Yes and No: Indian tribes are quasi- sovereign, possessing attributes of sovereignty. Indian tribes retain some of their inherent powers of self-government, but tribes are subject to the supreme ( plenary ) power of the United States.
Are Tribal Governments Sovereign? (cont.) The Supreme Court developed this middle ground in a line of cases beginning in the 1820s. As summarized in United States v. Lara, 541 U.S. 193 (2004): (1) Congress has plenary power over Indian tribes: The Constitution grants Congress board general powers to legislate in respect to Indian tribes, powers that we have consistently described as plenary and exclusive. (2) However, those rights not removed from tribes remain as part of their inherent authority. Indian tribes are unique aggregations, possessing attributes of sovereignty over both their members and their territory.
Criticism of the Plenary Power Doctrine: Might Doesn't Make Right The plenary power doctrine is firmly established in federal law. All 3 branches of the federal government accept it. However, the doctrine has been extensively criticized. After all, there is nothing in the Constitution that authorizes the federal government to legislate over Indian tribes. The Supreme Court relies primarily on the Commerce Clause, but that Clause says only that Congress shall have the power To regulate commerce with foreign Nations, and among the several States, and with the Indian tribes. Art. I, Sec. 8, Cl. 3. That language confers no greater power over Indian tribes than over foreign Nations.
Criticism of the Plenary Power Doctrine: Might Doesn't Make Right (cont.) The plenary power was seemingly plucked out of thin air by the Supreme Court. Walter Echo-Hawk, In the Courts of the Conqueror: The Ten Worst Indian Law Cases Ever Decided (2010) at page 163. The plenary power doctrine was adopted by the Supreme Court to justify federal land acquisition and power in Indian affairs. Frank Pommersheim, Broken Landscape: Indians, Indian Tribes, and the Constitution (2009) at page 140.
Three Principles Regarding Tribal Sovereignty 1. Indian tribes do retain certain inherent powers of a sovereign. 2. Congress, however, has the power to limit or abolish tribal authority. 3. In addition to the express limits that Congress has placed on tribal powers, there are certain implied limits, especially concerning non-Indians.
First Principle: Indian Tribes Retain Inherent Authority 1. Worcester v. Georgia, 31 U.S. 515 (1832). Indian nations had always been considered as distinct, independent political communities, retaining their original rights, as the undisputed possessors of the soil from time immemorial. . . .The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and the citizens of Georgia, have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress.
First Principle: Indian Tribes Retain Inherent Authority (cont.) 2. Talton v. Mayes, 163 U.S. 379 (1896). It cannot be doubted, as said in Worcester, that . . . The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights. . . . [Because] the powers of local self-government enjoyed by the Cherokee Nation existed prior to the constitution, they are not operated upon by the fifth amendment.
Second Principle: Congress Can Limit or Abolish Tribal Powers 1. Worcester v. Georgia, 31 U.S. 515 (1832). 2. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
Third Principle: Implied Limits on Tribal Power over Non-Indians Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Indian tribes are prohibited from exercising both those powers of autonomous states that are expressly terminated by Congress and those powers inconsistent with their status. [Indian tribes do not] retain the power to try non-Indians according to their own customs and procedure.
Summary (contd) Indian tribes are neither states, nor part of the federal government, nor subdivisions of either. Rather, they are sovereign political entities possessed of sovereign authority not derived from the United States, which they predate. [Indian tribes are] qualified to exercise powers of self-government . . . by reason of their original tribal sovereignty. National Labor Relations Board v. Pueblo of San Juan, 276 F.3d 1186, 1192 (10th Cir. 2002).
Summary Some tribal powers have been expressly limited or abolished by Congress, and others have been lost by implication. But Indian tribes still have vast, inherent powers, particularly over their members and territory. Congress has passed laws that encourage and affirm the exercise of tribal powers, and one of these is the Indian Child Welfare Act of 1978.
ICWA: Historical Background Beginning in the mid-1800s, public and private agencies, with the federal government s consent, routinely removed Indian children from their homes. A congressional investigation in the 1970s revealed: 1. 25-35% of all Indian children in the US were being taken from their families by state welfare agencies. 2. In some states, Indian children were 7 to 8 times more likely to be removed than white children. 3. The vast majority of these Indian children were placed in non-Indian homes.
Historical Background (cont.) 4. State judges and social workers were often prejudiced against Indians and ignorant of tribal values and customs. Congress found that state officials have often failed to recognize the . . . cultural and social standards prevailing in Indian communities and families. --25 U.S.C. 1901 5. These removals were disastrous not only for many Indian children and their families but also for their tribes. Tribes were being robbed of their youth.
ICWAs Purpose Congress passed ICWA to create minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes. --25 U.S.C. 1902 ICWA contains protections for both Indian families and Indian tribes. Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians. --Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49 (1989)
ICWA: Major Provisions 1. If the Indian child resides on an Indian reservation or has been made a ward of the tribal court, the tribal court has exclusive jurisdiction over the child in all custody matters. State courts may not adjudicate these cases unless expressly conferred that authority by Congress. --25 U.S.C. 1911(a).
Major Provisions(cont.) 2. If the child resides off the reservation, the state court and the tribal court have concurrent (shared) jurisdiction. If the proceeding begins in state court, the court must notify the child's parents and tribe, and they each have a right to intervene in the proceeding. --25 U.S.C. 1912(a), 1911(c) respectively.
Major Provisions(cont.) 3. In all cases in state court, if the tribe or a parent requests it, the court must transfer the case to tribal court unless a parent objects or good cause exists to deny the request. --25 U.S.C. 1911(b).
Major Provisions(cont.) 4. As the tribal notice and the transfer provisions indicate, although jurisdiction is concurrent, it is presumptively tribal. Holyfield, 490 U.S. at 36. Indian tribes have independent rights under ICWA. Thus, they have rights even when both parents want to relinquish custody of their child voluntarily.
Major Provisions (cont.) 5. If the case remains in state court, the court may not terminate parental rights without proof beyond a reasonable doubt (or place the child in foster care without clear and convincing evidence ) that continued custody by the child's family is likely to result in serious emotional or physical damage to the child. (Thus, this is not a best interest of the child standard.) --25 U.S.C. 1912(f) and (e), respectively.
Major Provisions (cont.) 6. If the child's parents are indigent, they have a right to a court-appointed attorney. Separate counsel must be appointed for the child when the best interests of the child require it. --25 U.S.C. 1912(b).
Major Provisions (cont.) 7. Before a state court can remove an Indian child from the home for placement in either foster care or for adoption, testimony from qualified expert witnesses (QEW) must be submitted on the issue of whether continued placement in the home is likely to cause serious emotional or physical injury to the child. --25 U.S.C. 1912(d).
Major Provisions (cont.) 8. An Indian child may not be removed from the home for foster care or for adoption unless it is proven that active efforts have been made to provide remedial services programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. and rehabilitative --25 U.S.C. 1912(d).
Major Provisions (cont.) 9. Before a state court can place an Indian child in a non-Indian adoptive home, the court must give a placement preference to, first, the child's extended family, second, other members of the child's tribe, and third, other Indian families, unless good cause exists to ignore this placement hierarchy. A similar hierarchy is imposed in foster care placements. --25 U.S.C. 1915(a) and (b), respectively.
Major Provisions (cont.) 10. Tribal court custody decisions are entitled to the same full faith and credit as state court custody decisions, meaning that they normally must be respected and enforced by other courts. --25 U.S.C. 1911(d).
Major Provisions (cont.) 11. The state must keep accurate records of all Indian child placements to which ICWA applies and make them available to the federal government and the tribe. In addition, when an adopted Indian child becomes eighteen years old, the state must provide the child upon his or her request with the names and tribal affiliation(s) of the child's biological parents. --25 U.S.C. 1915(e), 1917, respectively.
Major Provisions (cont.) 12. Whenever a child is removed by state officials in an emergency situation, a hearing must be held soon thereafter and the child must be returned to the parents unless continued removal is necessary to prevent imminent physical damage or harm to the child. Thus, the state s best interests of the child standard does not apply in emergency removals. --25 U.S.C. 1922.
Summary Thus, ICWA is a remedial law designed to protect Indians and tribes. Among other things, ICWA gives tribal courts exclusive jurisdiction when the child lives on the reservation. When the child lives off the reservation, there is concurrent but presumptively tribal jurisdiction, the Supreme Court said in Holyfield. 490 U.S. at 36. Even when a custody case remains in state court, the tribe has a right to intervene, and placement of the child is governed by ICWA s requirements.
