Written by: Matthew Fletcher
Primary Source : Turtle Talk, September 28, 2016
This is the sixth full commentary on “The New Trail of Tears” (TNToT), a book written by Naomi Schaefer Riley (NSR or the author). The announcement post is here.
- The first commentary, “Framed by a Friend,” is here.
- The second commentary, “Turning Indian History against Indians,” is here.
- The third commentary, “Indians are Saudi Arabia, Not Israel (Oh, and Crying Toddlers)” is here.
- The fourth commentary, “”Indians as Unmotivated, Dependent Victims” is here.
- Monte Mills’ guest commentary is here.
- The fifth commentary: “Tearing Down American Indian Educators and Parents” is here.
- Commentary on NSR’s DAPL column is here.
Chapter 5 is an outrage, with NSR implicitly advocating for the complete eradication of tribal communities because Indian tribes and the federal government have made them unlivable. This chapter deals with the Indian Child Welfare Act and Indian country justice. NSR continues to condemn Indian people for the same dog whistles — they’re lazy, ignorant, and dependent.
ICWA (or, Indian Country is Hell)
TNToT tees up a series of anti-ICWA advocates here, but never really makes the argument for why ICWA is bad. NSR’s goal here is to try to show that Indian country is an unlivable hellhole. NSR believes that “for too many children the best option is be raised elsewhere” [at 146]. TNToT quotes Elizabeth Morris (a vociferous anti-ICWA voicebox for the Christian Alliance for Indian Child Welfare), who hopes that her own children won’t grow up in Minnesota Indian country [at 145]. Morris blames the federal government’s “subsidies” for her perception that Indian families are disintegrating. [at 150] For Morris, the government has “replace[d] the father in the home. . . .” [at 150] Further, “A man does need to feel needed. But the government took care of all that.” [at 150]
Morris is an evangelical Christian who firmly preaches the “drunken Indian” stereotype as fact. She also believes that Indian children should be raised by white families: “If they seriously wanted to protect children, they would have to send them off the rez and give them to white foster homes.” Morris is affiliated with the “Citizens Equal Rights Alliance,” a white nationalist group. These are NSR’s people, leading her down the primrose path to conclude: “[T]he reservation [is] no place for . . . children.” [at 167]
NSR also relies upon Mark Fiddler (the man who wants as many Indian children in foster care as possible: “If anything, there should be more Indian children put into foster care.”). Like Morris, Fiddler condemns Indian parents and reservation homes, referring to a “cycle of dysfunctional parenting.” [at 152] Fiddler also alleges: “And a disproportionately high number of Indian children are in danger every day.” [at 149-50] Foster care in off-reservation homes as a solution to the real problems in Indian child welfare is a really bad idea. I addressed these claims here:
Studies show what should be inherently understood—plucking children out of a community they know and putting them in stranger foster care is actively harmful to kids (there’s a reason Casey Family Programs is putting a billion dollars into reducing the number of kids in foster care). Eighty percent of child welfare removals are due to neglect. Our children do deserve better: better services, better wrap around care, a better understanding of the mental health issues and chemical dependency that plagues their parents. They don’t deserve to be taken from everything familiar—their neighborhood, schools, and extended family—because of system failures in our society.
Opposition to ICWA often comes from the private adoption market, as I wrote here:
Who benefits if ICWA tumbles? As usual, the answer can be found by following the money. Start with the beneficiaries of the $14 billion private adoption market. The adoption industry long has been a foe of ICWA. Conversely, Indian tribes do not profit from the termination of parents’ rights.
ICWA requires the state to seek an Indian family to adopt where possible, but private adoption agencies don’t get paid unless an adoption with a paying family goes through. In both direct placement adoptions and adoptions following failed reunifications with parents, money works against reunification with families and ICWA compliance. Some foster parents are encouraged by private agencies to become foster-to-adopt parents, altering the goal of foster care from reunification to termination for adoption. And being told they will be able to adopt their Indian foster children just as soon as the parents’ rights are terminated creates an adversarial relationship – not one that encourages the stated goal of reunification. In addition, fees charged by private and religious adoption agencies taint direct placement adoption petitions.
There is a candid statement in TNToT about the origins of ICWA: before ICWA, states removed Indian kids because the families were poor: “These standards, of course, would be enough to remove plenty of white children from their homes as well.” [at 149] I’m not sure if NSR is advocating for more foster care for all poor families regardless of race, or if’s an admission that there’s a problem in child welfare more generally.
Indian Country Criminal Justice
NSR also alleges a “serious law enforcement problem” in Indian country. [at 154] She’s pretty late to this ballgame — the Amnesty Report “Maze of Injustice” arrived in 2006, followed by the Tribal Law and Order Act of 2010 and the tribal jurisdictional provisions of VAWA in 2013, and then the Indian Law and Order Commission Report in late 2013.
NSR lays a lot of blame. TNToT blames Indian country schools for not cracking down on Indian kiddos [at 153]; white guilt (I think): “There’s so much guilt about racism, that they don’t want to shine a light on crimes taking place now.” [at 157]; fetal alcohol syndrome [at 158]; tribes for being ineffective [at 164]; the complexity of Indian country criminal jurisdiction (“The jumble of legal jurisdictions has made it all but impossible to adequately police some reservations.”) [at 167]. On that last point, NSR should have read something about tribal-state-local public safety cooperation agreements, which occupies an entire chapter of the Conference of Western Attorneys General handbook on Indian law. Cooperation is the norm.
TNToT offers no solutions whatsoever to these problems (other than, I guess, depopulating Indian country). NSR doesn’t think more power to tribal governments would be effective (“doubtful”) [at 162-63], but doesn’t say why, other than to allege that there would be “less effective policing and prosecution”. [at 164] NSR laments that due to tribal political power, states will never be authorized to be the solution [at 164]. There’s a lot of baloney in TNToT, but even the United States Supreme Court doesn’t buy that states could be a solution:
Even when capable of exercising jurisdiction, however, States have not devoted their limited criminal justice resources to crimes committed in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–1637 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7–8 (2007)[.]
[United States v. Bryant, 136 S.Ct. 1954, 1960 (2016). If NSR talked to more people than her anti-Indian informants, TNToT would be much better and more intellectually honest.
Statehood for Indian Tribes!!!!
William Allen recommends statehood for Indian tribes, at least the larger ones. [at 167] Well, okay then.
Ha! I’m laughing at myself because I earlier stated TNToT doesn’t discuss Indian self-determination, well, it’s in Chapter 5 a little bit. Here’s NSR’s take, quoting on William Allen, a Bush I era Civil Rights Commission appointee who apparently last thought about Indian country in 1991 when the Commission published an absolute hackjob on tribal governments: “After [ISDEAA], you began to get a steady stream of people coming back into the reservation, because it came with some pretty targeted federal funding.” [at 167] This sounds like a good thing!
Not for NSR, who then claims in the very next sentence: “Today it’s the most vulnerable people who remain on the reservation. They’re the ones with little education, little sense of what life outside the reservation might offer them, and little ambition.” [at 167] Holy cow! So first there’s a steady stream of professional Indians going back home to administer self-determination contracts (according to Allen), but for NSR the only Indians left in Indian country are ignorant and unmotivated (yes, that’s dog whistle politics again). Maybe TNToT needed a better editor. Aside from this contradicting evidence (Allen is right, NSR just dislikes Indians), NSR still doesn’t get self-determination right, even when she quotes Allen on it.
Indian Country Civil Rights
Still channeling Allen’s 1991 report on civil rights, NSR claims, “No one has made them aware of their rights as American citizens.” [at 167-68] Indian people are not that stupid. NSR sounds like a staffer on the Senate Committee on Indian Affairs c. 1965 before the enactment of the Indian Civil Rights Act. Still can’t take this seriously until NSR acknowledges that Indian tribes and Indian people have property rights.
More: “So the question is who will stand up for the civil rights of individual Indians? Who will say it’s not simply the collective interests of the tribe or the personal interests of tribal leaders that matter?” [at 68] The tribes with tribal judiciaries are doing a pretty good job, better than federal courts, where apparently it’s not a problem when an African-American employee given a promotion is welcomed into his new job with the placement of a hangman’s noose in his office. [PDF] Speaking of tribal judiciaries. . . .
For NSR, just bad. “The court systems often can’t guarantee the rights of victims or of defendants.” [at 168] NSR is backed by the National Association of Criminal Defense Lawyers, which testified against the VAWA tribal jurisdictional provisions. [at 163] Finally, NSR relies on an entity not affiliated with the conservative right.
Still, it’s an overbroad statement. I serve on 8 judiciaries, all of which make their laws available and guarantee the right to counsel in cases where jail time is possible. None of the elements complained about by NACDL are present with these tribes. Broad, generalized statements like these are borderline irresponsible, and NACDL knows it.
TNToT includes an argument recited by the Independent Women’s Forum that wants victims to have access to same courts as everyone else [at 163]. So does everyone! Outside of Indian country, assaulted women can turn to their local first responders (even that’s not so great). Not so in Indian country because tribal police (who are the first responders usually) and tribal courts have either no jurisdiction (non-Indians) or limited sentencing authority (Indians). And we already know from the Supreme Court in Bryant that states and feds have failed. Tribes are the only realistic effective justice provider and they’re hamstrung, even with more jurisdiction (I argued this here).
More Biased Sources
Other than NACDL, NSR quotes the same kind of people who are advocates for less government and tend to think liberals are PC Nazis. We get a Walter Olson sighting on page 147. He’s a Cato Institute scholar; tends to get critically important facts about ICWA cases wrong, as I pointed out he did here. There’s a reference to the Independent Women’s Forum, a group heavily funded by Koch-affiliated billionaires and foundations. See also here.
NSR also tells the story of Johnston Moore to criticize ICWA [at 147-48] Moore lost an ICWA case, and began a crusade against ICWA (joining Elizabeth Morris). A blog titled “Ethical Christian Adoption” has pointed out some of the unethical actions of both:
Instead of pushing to make sure that family is involved, Moore has involved himself in FOUR ICWA cases wanting to deny children permanency with their natural families. In the case of Veronica Brown (Capobianco), he ignored the numerous ethics violations that were at the start of this case and even the dishonesty of the adoptive parents and biological mother in favor of using this case to overturn ICWA. A majority of the misinformation that was sent out about this case was through a public relations firm headed by Jessica Munday. I only bring this up because instead of distancing himself from the case when the lies came out into the open, he decided instead to found an organization with Jessica Munday and Lisa Morris (who runs the Christian Alliance for Indian Child Welfare, a group considered by many natives to be a racist hate group, indeed, a group with its own ethical questions to answer) called the Coalition for the Protection of Indian Children and Families.
As would be expected, NSR spends some time on the Spirit Lake Nation ICW tragedy from a few years back. There’s not much to say about it other than the federal government stepped in when it went out of control. Where NSR goes off the rails is in her comparison of the tribe to a Muslim community in England that allegedly engaged in mass child abuse. [at 156-57] This is yet more dog whistle politics, with the added wrinkle of pandering to the Trumpian-era bigotry against Muslim people, too.
Allegations of Tribal Corruption
We’re in the last full chapter, and NSR still keeps alleging tribal corruption without any backing evidence whatsoever, claiming things like tribal social service workers are “incompetent”, there’s no oversight from the state or BIA, court orders are slow, there are different “standards” than state courts, and the judges related to parents [at 159-60]. Still no evidence. Nothing.
Excepting Spirit Lake, which was a real tragedy to be sure (and not unique to Indian tribes as pointed out here: “child abuse scandals happen in state government more“). That horrible scandal has no analogs in Indian country (and hopefully never will).
Adoptive Couple v. Baby Girl
TNToT covers the tragedy of the Baby Girl case, excluding critically important facts that her informants don’t want her to report: 1) Birth Father was an active duty serviceman; (2) Birth Fathers’ due process rights generally prohibit the relinquishment of parental rights by text message; (3) several months delay by the adoptive couple before serving Father of adoption papers; (4) and Baby Girl with her dad for years before forced back to South Carolina.
There’s actually an important and candid admission in TNToT about the case: “If the paperwork had been done correctly, the child would have been with him the whole time. There would’ve been no question about ICWA’s relevance.” [at 146-47]
Larry Long’s Study: “understanding contextual differences in American Indian criminal justice”
NSR really lays blame on Indian men for violence in Indian country. NSR concludes that since 60 percent of the criminal docket in South Dakota federal courts involves Indian defendants, that means most of the crimes are committed by Indians [at 164]. That logic (I should say logical fallacy) was the House Republican minority’s argument against enacting the 2013 VAWA tribal jurisdictional provisions. Ryan Dreveskracht destroyed the notion years ago:
What the House Report did not note is that the SDAG study was limited to the State of South Dakota and used only police prosecution records. This police data, of course, did not include the numerous instances in which on-reservation perpetrators went free due to the very jurisdictional gap indicated above (which, by its nature, excludes non-Indians), where police had refused to investigate the crimes, or where the crimes went unreported. The House Report’s reading of this study has been contradicted by numerous independent reports, including recent studies conducted by the Department of Justice and Amnesty International. Indeed, as noted by the National Congress of American Indians:Upon analysis, [the SDAG study] supports [the] concern that domestic violence crimes committed by non-Indians are often unprosecuted. The DOJ statistics measure reported assaults. [The SDAG study] compares that to prosecutions, and concludes that most of the defendants in South Dakota are Indians. That is [the] point–non-Indians commit many assaults on Indians, and they are not prosecuted. This is particularly true in South Dakota.What is more important, who cares if it is eighty-eight percent or thirty-one percent of sexual predators who are allowed to violate Native women and get away scot-free? The fact that House Republicans take the position that Indian rape and violence is tolerable up to some point between those two numbers is absolutely deplorable. Were this the case in any other part of the country, affecting any other racial demographic, such atrocities would surely not be tolerated.
Latest posts by Matthew Fletcher (see all)
- On Fear, Parades of Horribles, and Emotionally Potent Oversimplifications in Tribal Rights Litigation - December 21, 2018
- Reflections on Justice Kennedy’s Indian Law Legacy - July 6, 2018
- National Indian Law Library Bulletin (6/14/2018) - June 20, 2018