Author: Kathryn Fort


ICWA and Military Families

I want to thank Solangel for having me here at the blog for the month of May. I’ve enjoyed writing posts about our work at the Indigenous Law and Policy Center.

Yesterday I was part of a roundtable discussion at Law and Society with a number of Indian law scholars who all talked for about 10 minutes on their current projects. The eight projects covered everything from the oil spill clean up process to ongoing treaty rights cases to the effect of extractive industry development on human trafficking. All of them were grounded in specific needs for tribes and tribal attorneys. It was an impressive panel.

I spoke about my latest writing project, the intersection of the Indian Child Welfare Act and military families. In Adoptive Couple v. Baby Girl, the Supreme Court based much of its discussion on the biological father’s “abandonment” of his child. Nowhere in the opinion did the Court mention the father’s military service and his year-long deployment to Iraq.

The law that prevented the adoption from moving forward during the father’s deployment, the Servicemembers Civil Relief Act, was amended in 2008 to include any child custody proceeding in the cases that could be stayed when a servicemember cannot be present at the court hearings. However, during the time the father was deployed, the baby stayed with the potential adoptive couple. In a family law situation, the length of a child’s placement receives increasing weight the longer the placement. While the South Carolina courts found that the child should be placed back with her father under the Indian Child Welfare Act, there was reluctance to do it based on the length of time the potential adoptive couple had had the baby. Cases involving service members need to be stayed, but the stay does not contemplate the ramifications on a family law case like Adoptive Couple.

Native people serve at a proportionally higher rate than other groups. In the case of active duty service members, they have the possibility of having to ask a state court to enforce not one relatively unknown federal statute, but two. Investigating how these play out in the case law, and also how the active efforts to preserve the Indian family (as required by ICWA) can be defined include specific services for Native veteran parents are two of the areas I’m working on this summer.


UN Report on Canada’s Relationship with Indigenous Peoples

Yesterday the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya (University of Arizona College of Law), released his Report on Canada. The Report discusses all of the issues mentioned in an earlier post, in addition to many others.

One that has gained particular attention is the consultation process between tribes and the federal government regarding extractive and development industries on tribal land. The Report encourages using the “free, prior, and informed consent” international standard (para 98). In Canada, the Supreme Court found that there is a requirement of consultation in Haida Nation v. British Columbia (para 7). There are, however, multiple issues with these standards, two of which I am particularly interested in.

First, who has the duty to consult? The relationships established by treaties is between tribal nations and the British Crown and/or Canadian government. Public lands are governed by provincial governments. At this point, Canada has no standard consultation protocol, and the industries themselves are often conducting the consultation meetings (para 74) and long after the projects are moving forward (para 71), a clear conflict of interest.

Second, both standards in practice (consent and consultation) do not leave room for an absolute refusal. What happens when the answer after consultation is simply no, or there is no consent? The right to say no to industry development must be an option for the standards to have any meaning.

A list of projects of concern to Indigenous Nations listed in the Report (para 73):

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The Indian Child Welfare Act, Class Action Suits, and Open Hearings

The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 to address the widespread removal by the state of Indian children from their families. I write this in nearly every brief I write and say it nearly ever talk I give. It’s rote, but every piece of it is important. The act is named for Indian children. It is a federal law passed more than 30 years ago. It is a federal law that applies in state court. State actors (social workers, judges, and guardians ad litem) removed Indian children for reasons usually governed by non-Native cultural standards. And the State took children from their parents, permanently.

ICWA contains a number of provisions to prevent removal on primarily cultural reasons. The main effect of these provisions is to slow down the process of removal. This slowing down is the purpose of the law, but is also the a cause of resentment among the people who are bound by the law. Recently, in South Dakota, the Oglala Sioux, Rosebud Sioux tribes, and parents sued the Department of Social Services for removing children in violation of the Due Process clause and ICWA. Oglala Sioux Tribe v. Van Hunnik survived a motion to dismiss, the plaintiffs were successfully certified as a class,  and recently the South Dakota courts in one county were forced to turn over the transcripts for the emergency “48 hour hearings” where the violations are alleged (the judges objected, but the court reporters were then required to turn them over under the All Writs Act).

One of the main arguments against turning over these transcripts is the state-created expectation of privacy because the hearings are closed. Not all states have their abuse and neglect (or “child in need of care” or “48 hour hearing” or “child in need of protection”) hearings closed. In Michigan, the hearings are open, as they are in Minnesota. Both states also have ICWA court monitoring programs in various counties. The privacy arguments against open hearings for both parents and children are real. However, the actions of the South Dakota courts shows what happens when hearings are closed (hearings happen in less than 2 minutes, no evidence for removal, etc.). Open hearings have their problems (process familiarity, too fast, difficult to hear, assumption that parent’s attorneys are explaining the process outside of the courtroom, lack of privacy), but closed hearings can lead to a significant and troubling abuse of the process.

In her book, Ordinary Injustice, Amy Bach discusses issues with criminal hearings where all of the parties know each other except the accused. The same happens in abuse and neglect cases. One of her proposed solutions is monitoring hearings by outside observers. This is the same goal as ICWA courtroom observation projects–ensuring compliance with the law through the presence of outside observers. The South Dakota case demonstrates what can happen when concerns with privacy trumps the benefit of sunshine.


Indigenous News from the North

Thank you so much to Solangel for inviting me to participate on the blog. As she kindly wrote in her introduction, I also help Matthew Fletcher run a blog on Indian law over at TurtleTalk. While we do offer some commentary, we also spend much of our time pointing out interesting stories or cases our readers might be interested in. I use our Twitter account (@ILPCTurtleTalk) for the same purpose. What I’ve been interested in is watching Indigenous social action in Canada and how those stories are disseminated and talked about on Twitter. I think the perception from the United States is that Canada somehow has a better relationship with its Native Nations than the United States. In fact, the very different legal systems have led to different relationships between the federal government and tribal governments on either side of the North American border. The Canadian one is not necessarily a better one.

Here are few stories we’ve been following:

Missing and Murdered Indigenous Women (#MMIW)

The RCMP recently confirmed there have been more than a thousand missing or murdered Indigenous women in the past thirty years. The Harper government continues to ignore calls for a public inquiry. One traveling exhibit, Walking With Our Sisters, uses vamps, or the beaded tops of unfinished moccasins, to draw attention to both the issue and the women. The work is currently in Sault Ste Marie, Ontario. Various direct actions over this issue have happened in Tyendinaga and in Toronto.

Ongoing Truth and Reconciliation Hearings on Residential Schools

Much like in the United States, the Canadian government used boarding, or residential, schools, to forcibly remove Aboriginal children from their families and attempt to assimilate them. Children were abused, tortured, and many died. A lawsuit against the government and the churches that ran the schools led to the largest class action settlement in Canada and the creation of the Truth and Reconciliation Commission. The ongoing proceedings of the TRC , and the federal government’s continued resistance to them has been the subject of repeated news stories and court orders. One of the leading advocates for Indigenous children in Canada, Cynthia Blackstock, has been the subject of federal surveillance.



Fracking on or near Reserve and/or Crown land has been a particularly controversial issue. This past fall, direct resistance to the testing by SWN Energy Company on land near Elsipogtog First Nation led to a raid by the RCMP and numerous arrests. New Brunswick courts issued various injunctions to both sides, ultimately siding with SWN. SWN’s promised return to the area for more shale gas testing will likely lead to continued clashes this summer.