Projects
American Indian Community Data Profile, 2002
Namadji Youth and Elders Project Report, 2001
Forum Reports
1997 Fall: Tribal Sovereignty and
American Indian Leadership
1996 Fall: Tribal Governments: What will they look like in the year 2010?
1996 Spring: The Threatened State of Tribal Sovereignty
Court decisions shape Indian policy
"American Indians have been modest. We have not embattled ourselves in
political discussions or conflicts. We've hoped 'they' will correct themselves
and their misguided or uninformed ways. In this forum, we seek to form
a platform and share what Indians think about issues with the broader
community rather than having someone else tell us what we think," said
John Poupart, president of the American Indian Research and Policy Institute.
In the break-out group concerning recent court decisions, considerable
discussion focused on the Indian Child Welfare Act (ICWA). This Act was
enacted by Congress in 1978 to address the problem of Indian children
being removed from their families. It was determined that without this
policy action the survival of Indian nations and Indian culture would
be at stake. Child placements outside of Indian homes would mean these
children would lose not only their heritage, but also their citizenship.
Many problems have resulted from lack of compliance with ICWA regulations.
When an Indian child is going to be placed, the tribe must be notified.
Often adoption agencies are more concerned with lucrative business of
placing children than with protecting children's rights as members of
Indian nations. Many larger tribes have ICWA offices to deal with placement
issues, but for tribes with limited resources, cases often end up in the
state court system where the outcome is usually negative.
ICWA case
One of the cases discussed was In Re Bridget R. (49 Cal.Rptr.2d 507,
Cal.App 2 Dist. 1996). In this case, the biological father of two-year-old
twin Indian children sought to rescind his voluntary relinquishment of
parental rights. The biological father's tribe, Dry Creek Rancheria of
Pomo Indians, moved to intervene. The issue in the case was whether the
Indian Child Welfare Act should apply in this case where there was voluntary
relinquishment and the children were not taken out of an existing Indian
family.
The district court in California agreed that ICWA does apply to this case
and that the adoption should not go through. The California Court of Appeals
reversed the lower court's decision to return the children to the extended
family of the father. The court of appeals held that 1) ICWA was unconstitutional
unless limited by "existing Indian family" doctrine, and 2) if the biological
father was determined to have a significant social, cultural, or political
relationship with Indian tribal culture to warrant application of ICWA,
guardianship hearings would be required to determine whether, under state
law as well as ICWA, change of custody would be detrimental to the twins.
A lawyer from California participating in the session offered that the
district where this case was decided is District 2-Los Angeles County.
The judges know nothing about Indian law, and they're trying to bring
this case into a paradigm they understand. The state court judges are
trying to come up with remedies and the tribes are working from a point
of emotion.
Dr. John Red Horse offered that it is not just the court system. It is
also a political situation in California. That situation is filled with
a profound sense of ignorance toward Indian issues. There is a political
impact and spill-over from this case.
This case also had the problem of trying to rectify the issue after the
fact. This was a case that wouldn't have entered the court system if the
biological father had been apprised of his rights as an Indian father
before he relinquished his parental rights.
For Gregg Bourland, tribal chairman of the Cheyenne River Sioux Tribe,
ICWA is profoundly personal. His older sister was taken from their mother
by nuns who ran the boarding school, and placed for adoption. "We have
never found my sister. The school is gone; the records are gone. If we
had ICWA then, my family would have been notified. My aunts, uncles and
grandmother would have raised my older sister. She may have been the first
tribal chairwoman, rather than myself," Bourland said.
Bourland added that this type of action is still taking place in the system.
It's popular and easy to adopt a baby-especially an Indian baby. Often
Indian women are mistaken for Chicano or Latino, and so ICWA is not applied.
Lower Brule/Oacoma case
The second case discussed was the Lower Brule/Oacoma case. The City of
Oacoma and the State of South Dakota brought a suit against the Department
of the Interior for putting land in trust for the Lower Brule Indian Tribe
alleging that it was unconstitutional. The Eighth Circuit Court, which
includes Minnesota, North & South Dakota, Iowa, Nebraska, Missouri and
Arkansas agreed.
Some tribes are opposed to appealing to the Supreme Court because of the
potential for a negative ruling. If the case weren't appealed, it would
only apply to the Eight Circuit. However, the decision is being appealed
to the U.S. Supreme Court, and the final outcome will have repercussions
for all land that has been earlier placed in federal trust status.
Since this case, there have been some policy changes in the Aberdeen and Minneapolis Bureau of Indian Affairs offices. Applications for trust status are being taken, but not acted upon.
Seminole case
The Florida Seminole case dealing with the Indian Gaming Regulatory Act (IGRA) provided an interesting dilemma for tribes. Under IGRA tribes must form a compact with the state in order to set up gaming. State can't refuse the tribes gaming if it is already allowed under state law, and if the state does not negotiate in good faith, the tribe can sue. However, in the Seminole case, the Supreme Court ruled that tribes cannot sue states because states have immunity under the eleventh amendment to the constitution.
Peterson Zah, former Navaho tribal chairman, who observed the court arguments, said it was a case that neither the State of Florida nor the Seminole tribe really wanted to win. Neither side wanted to deal with the other, and both felt that the federal government had shirked its responsibility.
Some of the recent Supreme Court decisions have caused tribes to withdraw and to take a protectionist stance, but the changing climate may require a rethinking of strategy with future generations in mind.
"For the Lakota people, the seventh generation is a way of thinking," said Gregg Bourland, Cheyenne River Sioux Tribe. "We give thanks to our ancestors so we could be here today. We must think about issues today, but we must also think about the issues as they will be seven generations from now. That is where power lies."
"I'd like to see this Forum as writing a sheet of music. We are writing policy. For example, the gaming commission case. Everyone went running in each direction stating "the sky is falling," "tribes lost, states won." I suggest that we write a single sheet of music. We must formulate policy in a forum like this. We must assess the impact for the seventh generation to come and acknowledge the seventh generation behind us-the blood and tears they shed for us," Bourland said.
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Tuesday November 1, 2005