America Has No Reason To Be Proud of the Indian Child Welfare Act

by Michael D. Harris

Michael D. Harris, an attorney from Oklahoma, related the following real-life experience with the Indian Child Welfare Act. This is the kind of thing that happens when the interests of unaccountable governments are more important than the needs of children. How often are similar tragedies repeated around the country?

Michael Harris was asked by a Court Clerk to represent the natural father of a twelve year old girl in a juvenile proceeding in tribal court. While ordinarily he would have declined this type of work, he accepted it to help resolve a case that had been pending for two years. The following day, he received the name of the father he was to represent (without either an address or telephone number) and an Order that set up a status conference for the case the following week. While he was disturbed at not having a practical way to contact the natural father before the status conference, he wasn’t overly concerned since a status conference merely involves a discussion with the assigned judge and the parties’ counsel about evidence and procedural matters.

On the day of the status conference, Mr. Harris attempted to familiarize himself with the case by speaking briefly with the attorney who was the court appointed guardian for the child, and at length with the attorney for the natural mother. His discussion with the attorney for the natural mother disturbed him greatly. He found out that the case involved an effort on the part of the maternal grandparents to obtain custody of the minor child, and that the natural mother was adamantly opposed.

According to the counsel for the natural mother, the tribal court had assumed jurisdiction of the matter in the midst of a juvenile proceeding conducted by the State of California. The child had a sister, one year older, who had come to the attention of the Department of Human Services because she alleged that she had been the victim of sexual abuse by the maternal grandfather with whom she and her sister had lived. Mr. Harris was allowed to examine the documentary evidence gathered by the California case worker. It included a report by a psychologist that supported the child’s allegations. The child’s mother had confessed that she had also been a victim of sexual abuse by her father. An examination by a pediatrician noted signs of physical trauma around the genital area of the child that not only suggested sexual abuse, but almost conclusively proved it.

The children were removed from the home of the maternal grandparents and placed in foster care. At this point, the maternal grandparents hired a lawyer who challenged the jurisdiction of the State of California. The battle for the younger sister was transferred to tribal court because of the Indian Child Welfare Act, where it languished for almost two years.

After these discussions, the “status conference” began. It became immediately apparent that this wasn’t a status conference, but was instead a full-blown hearing. Despite the absence of both the natural mother and the natural father, who had not been contacted about the hearing, the tribal court began to decide the merits of awarding custody of the minor child to the maternal grandparents who were the only parties present. They had come equipped with a plane ticket for the minor child that had been purchased before any formal decision was announced at this “status conference.”

Both of the counsels for the natural parents objected. The child’s guardian was stunned and attempted to avert the progress of the proceedings. A recommendation that a home study be conducted was ignored. A proposal that a criminal background check be conducted was dismissed. All evidence from the California investigation was suppressed, and in less than forty-five minutes, custody was awarded to the maternal grandparents. Without the protection of tribal jurisdiction, these same grandparents probably would have been serving substantial criminal sentences in California for the conduct that had initiated the whole proceedings. Afterward, the attorney who was serving as guardian for the child requested that he not be considered for future cases with the tribe.

This tribe demonstrated that its rights and authority were obviously more important than the welfare of this twelve year old girl. This incident violates the entire presumption and intent of the Indian Child Welfare Act. In Indian Country, the assertion of cultural identity is often considered more important than the recognition of the fundamental purpose of enlightened government; to assist the well-being of the citizens it serves. This political philosophy is the primary source of American pride in our form of government. Unfortunately, America has no reason to be proud of the Indian Child Welfare Act.