I think I’ll retreat from the global scale of my last couple posts and dwell in the details for a while with this story about an adoption dispute on the Meskwaki Settlement. The story: a Meskwaki woman had a baby by a non-Meskwaki father and put the child (named Braven) up for adoption. The couple that chose to adopt the child was also non-Meskwaki. When it came time to turn the baby over to it’s new parents, the Meskwaki tribal council invoked the Indian Child Welfare Act (hereafter ICWA; see an FAQ on the ICWA for a plain-language description) to prevent the adoption and to take custody of the child. A tribal judge has returned custody to the mother, but she must now petition the tribal council to pursue the adoption.
I find this story interesting for a number of reasons. First of all, it highlights several ongoing points of contention within the Meskwaki community about who is Meskwaki and what that means in today’s world. Also, it illustrates the assumptions that have informed US Indian policy, even well-intentioned policies like the ICWA. (There are a handful of other stories detailing the Meskwaki case here, here, and here; the details are pretty much the same. I’ve chosen to focus on the first story that emerged on the subject because of what I find to be an interesting, and probably unintended, editorial content.)
The Meskwaki face the same issue that other American Indian peoples do (which is shared by other American minorities as well): how to maintain some sense of boundedness in the context of a pluralistic society. In recent years, the question of identification has been compounded for many Meskwaki by the construction and subsequent success of a tribal casino. While the financial security afforded by the casino has given the Meskwaki the autonomy to protect their cultural patrimony — for instance, by allowing the construction of a bi-lingual school under Meskwaki control — it has also raised concerns among some Meskwaki about the possibility of remaining true to their heritage while acting as corporate capitalists. One of the ways that these concerns have expressed themselves is through concerns over tribal membership. While there have long been worries about “half-breeds” and non-Meskwaki living on the Settlement — the fieldnotes I have from the ’50s contain numerous references to the “half-breed problem” — the issue has taken on new valence with the success of the casino and the distribution of services and annuities made possible by the new source of income. Tribal enrollment is not just a matter of cultural belonging, it is now more profitable than ever to be a recognized member of the tribe.
But enrollment is not easy to achieve. Under the Meskwaki tribal constitution, and in keeping with the strong patrilineal kinship system, enrollment requires recognition by an enrolled Meskwaki father. This raises two concerns in the community. One is that when a Meskwaki man has a child by a non-Meskwaki woman, the child is eligible to enroll, even though it may never set foot on the Settlement and even though it may be wholly raised by its non-Meskwaki mother (which is not always the case, but is likely), which is to say raised as a non-Meskwaki. The other concern is the reverse: when a Meskwaki woman has a child by a non-Meskwaki man, the child is not eligible to enroll, even though it may be raised on the Settlement as an integrated part of the Meskwaki community. On the one hand, there is a growing resentment about enrolled Meskwakis who play no part in the social life of the community; on the other, there is growing concern about resources being used to support people who are not recognized members of the community and, because their children cannot be enrolled, will not contribute to the ongoing reproduction of the society. These concerns have given rise to a mounting pressure to reform the enrollment provisions — perhaps by adopting DNA testing to establish “Meskwaki-ness”, a troubling development in its own right — as well as efforts to further limit residency of un-enrolled persons on the Settlement. The child whose adoption is in question has been born into the middle of these conflicting viewpoints: as the child of a non-Meskwaki father, he cannot be enrolled, and yet as the child of a Meskwaki mother (in a family that has some prominence as keepers of Meskwaki tradition) he represents part of the future of the Meskwaki culture.
These concerns are highlighted because adoption and kinship have a special meaning in Meskwaki culture. The death of an individual is followed by special adoption ceremonies in which the kinship role that the deceased played is “passed on” to another person — who becomes one’s father, brother, or whatever. We recognize in funerary customs the attempt of a group of people to come to terms with the “hole” the death has left in their network of social relations; Meskwaki adoption practices clearly fit into this model. But there’s a secondary meaning, as well, one which has special weight given the Meskwaki’s history — the protection of kinship networks has been essential to the survival of the Meskwaki as a people. Several times in the last couple centuries, the Meskwaki have faced extinction as a result of warfare or of disease. At one point, the community was reduced to only a couple dozen members; the adoption or reintegration of Meskwaki who had married out of the tribe or been captured in battle and integrated into their captor’s tribe was essential to the continuation of the Meskwaki, and the elaboration of multiple kinship roles essential following the literal decimation of the people — when 9 of 10 roles are suddenly vacated, kinship takes on a rather profound meaning.
Into this mix comes the ICWA. Passed in 1978, the ICWA was intended to put a stop to the use of adoption to advance an assimilationist agenda. Historically, adoption agencies have consciously striven to place Indian babies with non-Indian parents, arguing that poverty and ill education made Indian parents unlikely candidates for adoption. Family service agencies have also contributed to the assimilative project, often removing children form Indian homes after observing local customs that they deemed “abusive”. The intent was clearly assimilative: if government policies could not force Indian peoples as a whole to assimilate into the “general population”, at least individual Indians could be “spared” the penalties of an Indian upbringing. The ICWA grew out of the greater empowerment of native peoples in the US following the rise of the American Indian Movement and the development of more sophisticated legal strategies built around the concept of sovereignty. Essentially, it allows tribal governments to intervene in the adoption process and to prevent the removal of Indian children to non-Indian adoptive or foster parents, keeping such children within the community. In this case, however, the enrollment standards of the Meskwaki mean that the child in question is legally not Meskwaki; any Meskwaki identity that can be ascribed to the child must necessarily be premised on standards that the Meskwaki do not recognize in their enrollment standards. The child both is and is not Meskwaki; the law does not apply because the child is not Meskwaki, yet the law’s intent is to protect Indian cultures of which the child may well grow to become an important part, even without enrollment.
Part of the confusion stems from the fact that the law has to cover all sorts of enrollment regimes. Many, perhaps most, tribes offer immediate recognition to anyone who can demonstrate a particular percentage of descent from recognized “full-blooded” members of the tribe. For instance, the local Paiute colony requires 1/8 descent from members of a list compiled in 1923, all of who are considered “full-blooded”. Meet the terms and you are Paiute. The Meskwaki system is unusual, though perhaps not unique, in requiring the father’s active involvement in recognizing the child. But more than the need to accommodate different and sometimes conflicting enrollment regimes, confusion arises from the underlying premise of the law, a long-standing idea in American thought — that “Indian-ness” is inborn, that children are either born Indian, or they are born non-Indian. If they are born Indian, then they “belong” with the Indian tribe they were born into; if not, then they “belong” with non-Indians. A child like Braven challenges this assumption, because although he was born non-Indian (in the legal sense) he was also born Indian (in the sense of his potential to take part in and enrich Meskwaki culture).
The article I’ve cited is interesting in its own right for the assumptions about individual rights and cultural identity it reveals. The story portrays the mother as the “good guy”, motivated only by the assessment of what would be best for the child — an assessment which she is entitled to make both by virtue of her motherhood and by virtue of her right to individual freedom and choice. Opposed to her is not so much the tribal council, but rather the mother’s cultural identity itself: “…when it came time to turn him over to the couple that wanted to give Braven a home, his heritage got in the way” (emphasis added). The tribal council, as embodiments of that “heritage”, is seen as interfering with “the [mother’s] right to say who should raise [her child].” It is only decent, the article seems to suggest, to protect the mother’s and child’s rights from the tyranny of “heritage” — exactly the kind of thinking that the ICWA was drafted to oppose in the first place. Where the ICWA privileges cultural identity (as determined by affiliation), the article privileges individual identity (as determined by individual decision-making). And, of course, neither perspective can resolve the ambiguities presented by a non-Indian Indian like Braven.
I find it absolutely amazing that the tribe was able to “temporarily take custody.”
Also, I find it amazing that the article refers to the rights of the tribe to place any child who is a “decedent” of the tribe. I think they meant something else.
The legal status of indian tribes is so patchwork and confusing that as a nonexpert, I don’t feel qualified to comment on it. It mostly exists because it exists, not because of any overarching principles of law.
But regardless, its kind of scary, in a way. A body of people are asserting a legally enforceable interest in someone else’s baby. Given that what I will tentatively refer to as “my” culture is hotly contesting whether or not grandparent visitation statutes are proper, or even constitutional, I find it interesting to see that for other people who are kind of part of the US, legally enforceable rights to a child are held by a group even further removed from the grandparents: a group composed based on cultural heritage.
Imagine if a group of registered white southern baptists of celtic descent could stop a similar southern baptist woman from putting her child up for adoption in an adoption system statistically likely to place the kid with the unsaved, and even take custody of the baby to prevent it. Wow. It’d be an interesting world.
Isn’t there a third messy axis here? We’ve got the individual identity axis, and then the cultural identity axis — righty-o. but then there is the fact that the mother in question is, well, a woman; and that her decision about her child has been abrogated by a cultural system that (as you describe it) seems defined by and in terms of men. As a feminist cultural relativist (despite all the caveats attachable to both descriptors, if I have to pick a battle flag it is and always will be the hairy-legged dashiki wearing cyborgess rampant) this situation sounds like one that maybe can’t be illustrative/exemplary of anything in general? What I know so far leaves me wanting to know a *lot* more quotidian details — for example, how did the tribal council even find out about this woman’s plans for her child in the first place?
Patrick:
I agree that tribal law and sovereignty issues are messy — a reflection of exactly the kind of general context I tried to place this story in. American Indians both are and are not Americans; they are also inheritors of a history which has accorded them various degrees of sovereignty, which can be hard to reconcile with the national project carried out by the federal government.
This story moreparticularly deals with several sets of overlapping and somewhat conflicting claims on young Braven: the mother’s, the tribe’s, the federal government’s, and the adoptive parent’s (who are fairly absent from the media coverage). But I don’t think the tribal council was completely out of line; the Meskwaki are (and consider themselves to be) a “nation”, and the regulation of the movement of persons in and out of a nation is the prerogative of national governments. That doesn’t mean I completely sympathize with their actions, but it makes a kind of sense from their point of view.
Ozma:
I purposely left out the whole bit about a women’s control over her children so you and Nancy would have something to yell at me about.
OK, not really — I did think about adding the “third messy axis” into the mix, but decided that, while an important dimension, it really deserved to be treated independently of the issues I raised. I was going to add something to that effect as a comment, but decided to leave it hanging rather than immediately commenting on my own work (which seems a bit narcissistic, no?).
Women’s rights have become a big issue on the Settlement in the last decade, with a growing number of women demanding and often receiving concessions such as family housing for unenrolled children. Again, we have these conflicting claims — the mother has an obvious interest in the choices she has made about her child’s welfare, and the community as a whole, as represented by the council, has an interest in the future potential of a child born into it. What’s interesting to me is that both of these claims are grounded in the assumption that the geneaological relation between the mother (both as individual person and as Meskwaki) and child gives certain rights, in one case to the mother and in the other to the community as a whole. The adoptive parents, for isntance, may have a claim but have no “natural” rights in the matter, even though at birth the child clearly has no cultural identity except that ascribed by others.
As to “finding out about the plans”, I would note that the Meskwaki community is a small one, only about 1500 people, tied together through very strong kinship links. The Buffalos are a somewhat prominent family, as well — though that raises questions I cannot begin to answer about the interpersonal politics that may or may not be involved in this matter.
UPDATE: I have just discovered that, as of last month, DNA testing has been adopted for enrollments. This does not necessarily change the patrilineal structure — one’s father must be Meskwaki, as I understand the new standard — but it does empower women who have had children by Meskwaki fathers who are unwilling or unable, for whatever reason, to recognize their child.
Also, I should note that the tribal court is a new institution that only started adjudicating civil matters (including ICWA cases) last month — this case probably represents one of the earliest uses of the court.
a-ha, it does seem like an important detail that this is one of the *first* cases adjudicated by the court — maybe it’s less about individuals versus communities than about this new institution attempting to establish quasi-state power to dispose of the lives of its denizens, from conception/birth forward.
If you think about its actual application (and especially billboard ads promoting it…) DNA testing is at least as “empowering” for men as it is for women in patriarchal societies — like the Meskwaki or, say, our own. If social power ran through the female line, nobody would give a crap about the outcome of DNA tests.
Finally,
“I purposely left out the whole bit about a women’s control over her children so you and Nancy would have something to yell at me about.”
did you really write that? really? or did a bad and shameful alien power momentarily possess your typing hands and then sign off with the “not really” before allowing your better, consciousness-raised self to regain mastery of the keyboard?
It seems that Ozma has discovered Oneman’s shameful secret: he is not one man but two 😉
I’ll get back to the serious stuff later, if I have it in me.
This whole thing still bugs me. The child is either part of the Meskwaki tribe, or its not.
If it is, then they have jurisdiction to stop the adoption process. But if it is, there’s a chance the mother wouldn’t want to put the child up for adoption at all. I figure there’s a good chance that she’s doing this to spare her baby from growing up as an outsider in Meskwaki territory, lacking the benefits of mainstream american culture, but also lacking the benefits of inclusion in the Meskwaki tribe.
If the child is not a Meskwaki, then I doubt the tribal court has any jurisdiction over it.
Legally, this should be pretty simple, as long the Meskwaki don’t try to have their cake and eat it too, by acknowledging tribal membership for one purpose but not another.
Now, the more difficult case would be, a Meskwaki father has sex with a non Meskwaki woman, far from Meskwaki territory. Lets say, in New York. The father asserts no interest in standard parenting, or supporting the child. The woman is reasonably affluent, and well educated. Nevertheless, she decides adoption is the most appropriate course of action. The Meskwaki father acknowledges paternity to the tribe, and the tribe asserts its legal rights against the non Meskwaki woman, attempting to take custody of the child. In the meantime, the mother has arranged for adoption by a family also in New York.
In this case, the Meskwaki tribe would have perhaps a stronger argument. But also, they’d have more formidable opponents, much less likely to put up with ad hoc tribal court jurisdiction over them in any way, shape or form.
I agree, Patrick, that it is troubling, although I’m more struck by the ambiguity of the child’s position and the various claimants who believe they know what’s best for the child. I agree the tribal court may have overstepped its jurisdiction — a new court operating under new enroillment standards — but the court also seems to have quickly relinquished its earlier position.
The case you mentioned isn’t too far off from one of the concerns many tribal members seem to share: the recognized child of a Meskwaki father has claims to tribal resources, regardless of where s/he is raised. So what happens if/when a child or even grand-child or great-grandchild (assuming a male line of descent) shows up and claims to be Meskwaki? I’m not sure if the adoption would “nullify” the child’s status if formally recognized.
I would guess that the tribal council will grant the mother in this case her exception and the adoption will go through as planned, but the questions it raises (or, really, highlights — as I mentioned, some of these concerns are old ones) will very likely be points of contention for some time. I should add that although the Meskwaki do have an unusual means of evaluating enrollment, the concern over how to fit primordial sentiments about tribal membership into the legalistic framework adopted (or imposed) as part of the modern state is something that all Indian nations are facing. Cases like this, where a non-Indian can suddenly transform into an Indian, and vice versa, merely crystallize the issue.
Are you so sure that the various claimants all believe to know what is best for the child? That’s what is asserted, but that’s not the impression I got. It seems that the tribe is concerned with the child qua commodity rather than qua person.
I’ve been reading up:
The ICWA applies only to an “Indian Child.” That is defined as: “25 U.S.C.A. § 1903 (4) “Indian child” means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe;”
Looks like in the case of Braven, the ICWA doesn’t apply to him at all. He’s not eligible for membership in the Meskwaki tribe, as the Meskwaki Constitution excludes him. Certain federal rights apply to govern the limits of a tribal government’s power over its citizens, one of which is the right to no ex post facto law. That would make it tough for the tribe to change the rule quickly to net little Braven.
In the hypothetical I gave, the ICWA would apply. It’d be an interesting court case.
No, from a handful of news reports (all biased in their own way — media coverage of the Meskwaki has always been pretty shabby; see Doug Foley’s _Heartland Chronicles_) I can’t claim to know what each of teh actors believes. I admit I was giving them the benefit of the doubt, based on my own lack of details — I am not about to assume the worst of people based on a TV news report!
That said, I’m not sure that “treating someone as a commodity” is not a kind of claim about best interests, either. After all, our own government treats us as commodities all the time — look at labor policy, for example, or property or income tax policies, or immigration laws (especially as they intersect with labor policy). Inasmuch as my government has an interest in me, it is as a worker (and potential soldier, I suppose) not as a person. While I’m not quite ready to writing off the Meskwaki tribal council’s capacity to have very real concerns over the welfare of young Braven, should you be right about the commodification of the child, it would be in line with the role we expect from government.
Note: I’m not saying that’s right, just that it’s expected — this is the way most members of state-based societies think government should act, or at least is entitled to act.
But you are right about the application of the ICWA — I’m not sure how the tribal court ever thought they could invoke it in this case, unless a) the new enrollment standards are denser than I thought (which seems unlikely, as my source is the Meskwaki community newsletter, which spells out the changes in practical terms for its members) or b) there is some precedent in tribal law for treating the second clause of sec. b as independent of the first clause: “…and is the biological child of a member of an Indian tribe”. Braven meets this standard, but is not eligible for membership as far as I can tell, so doesn’t meet the first part of that section.
Its true that governments often treat people as commodities, but that is a very context dependant issue. The US government, for example, treats its people as commodities in regards to the military, the work force, the tax base, and so forth, but emphatically NOT as commodities in regards to civil rights, criminal law, and, most notably, child welfare law. In fact, a decent argument could be made that we de-commodify (if that’s a word) children *too much.* It has been argued that the interests of the child end up completely eclipsing the interests of the parent, and that decisions which would have been “good enough” for the child, and preferable for the parent, are passed by in favor of decisions which maximize benefit to the child, and harm the parent.
I doubt the tribal law precedent would make much difference. The tribal court only gets jurisdiction if its an intra tribal conflict, which is only the case if Braven is a Meskwaki. If the tribal court rules that he is, his parent(s) would still have a right to file a habeus petition to US Court, where US precedent would apply.
One of the things I was struck by in reading up on Indian enrollment was the apparent lack of willingness to conceptualize self identification as a member of the tribe separately with government recognition of one’s membership in the tribe. Several articles clearly attacked that concept. Thing is, I find the idea that one’s ethnic, religious, and cultural identity ought be separate from what the government classifies you as in regards to something like eligibility for revenue from tribal land held in trust, to be central to a multicultural society. So when I read some writer complain of, say, “the government says I’m not a *real* Indian because I don’t meet enrollment requirements, and that’s wrong because I’m culturally an indian and I self identify as one,” my natural reaction is to reply “your self identity isn’t dependant on white people in washington, don’t worry about it.” But apparently that’s not how it shakes down when people really try to negotiate the line between self identity and legal identity. I wonder how much of the commentary I read was due to people genuinely upset at the lack of government validation (or perceived government repudiation) of their cultural identity, and how much was an attempt at using the more easily sold narrative of cultural tolerance as a justification for the extension of the largely fiscal benefits of tribal enrollment.
Just a little update on this topic.
http://www.indianz.com/News/2005/010782.asp
I stumbled upon your blog yesterday as I googled stories about Braven. Hope you don’t mind me throwing in my two cents.
As Patrick describes, little Braven DOES NOT fit the definition of an Indian Child under Federal ICWA law but if you consult Iowa ICWA law (July 2003) there is a little (overreaching) clause about “anyone being a member of the tribe’s community”. (eek-they could claim ANYONE as a member of their community-even YOU!) I believe this is what the Meskwaki council is using to claim this child. My attorney explained that Federal ICWA overrides State… So ultimately the Meskwaki tribe does not have a claim to this child.
Just wanted to add that I appreciate the intelligent conversation on this topic.
I just stumbled on your article. I have been dealing with ICWA for four and a half years as an adoptive parent and advocate. ICWA is in desperate need of an overhaul. We adopted two kids who were 1/16 Native and grew up over a thousand miles from their reservation. Their mother (1/8) was never involved in tribal life and she barely even knew her Native father. Still, the tribe and social workers fought hard to have our sons removed from our home, even after they’d lived with us for over two years. All in the name of ICWA. They nearly succeeded. I find ICWA is constantly abused and misapplied to these kids–kids whose “Indianness” only becomes important after they’ve entered the system. I know from talking to social workers that relatives often claim tribal affiliation (whether it’s true or not) in efforts to slow down adoptions. ICWA allows them to do just that. I’ve even seen a case in which a tribe tried to prevent a non-Native girl (not a drop of Native blood) from being adopted. They failed but they did succeed in delaying her adoption. If anyone wants to join the fight to reform ICWA please get in touch with me. My email is johmo@earthlink.net. Put “ICWA” in the suject line.
I am going through my own custody issues now, with the meskwaki tribe and i cannot seem to get a clear cut view of what ICWA entails in Iowa and for my daughter who is not enrolled. . . if anyone could please help with info it would be greatly appreciated. ghost_poop@yahoo.com
You need an attorney who specializes in native american law.
General comments to this discussion: what is missing is (and this may help to understand why ICWA is what it is) the history of hte ICWA. Indian children have historically been taken from their families and shipped off to convents, boarding schools, missionary families (the churches were among the worst perpetrators of this) all in the name of “civilizing” them. The mantra at the time (late 19th – early 20th century, but this persisted up until the passage of the ICWA) was “kill the Indian to save the man.”
So, when the kids were forcibly removed from their Indian family, they were prohibited from speaking their native language, prevented from practicing their traditional religion, clothes, manners, etc were all westernized, etc. What we finally collectively realized was that this was a form of genocide: cultural extermination by preventing the people from perpetuating their culture through the most common method of cultural transmission: education of child by parent. So, against this backdrop, ICWA actually works remarkably well, despite many efforts by states to either ignore it or destroy it, and despite the attempts of “do-gooders” to “save” Indian children.
The sorts of challenges to ICWA parallel the other sorts of blatantly racist attacks on Indians and on tribal sovereignty in general: the kids aren’t “really Indians,” those invoking ICWA aren’t sincere, the parents have “abandoned” their tribal affiliation (usually, the argument is that the parents don’t go to pow wows, don’t live on rez, etc), etc. These are the sorts of statements that reveal the fundamental mindset about Indians: you’re not really an Indian unless you live in a tepee and drink “fire water”.
The fact is that Indian tribes are complex and sovereign nations within nations – the U.S. grew up around the tribes – and just as any other nation, they have the ultimate and unchallengeable authority to determine the bounds of their own membership and citizenship. To assert that tribes can’t do that is, to a tribal sovereignty advocate, utterly offensive.
Brian,
Good points — up to the end. It looks like you’re accusing me of saying that Indians oughtn’t be allowed to determine the bounds of their membership, which I’m not (and which would reflect a very poor, perhaps uncharitable, reading of the post). However, what I am saying is something very like the literal sense of your last sentence: “tribes can’t do that”. The point is that issues of tribal identity have become (scratch that — have always been) so complex that nearly every possible identification regime does some damage to the thing it’s supposed to define. Look at the situation of the descendents of freed black slaves among the Cherokee and Seminole — no matter how you define tribal membership in these cases, someone gets hurt; either it’s too broad and people get included who have no legitimate claim to membership, or it’s too restrictive and people get excluded who contribute a great deal to the community. The Meskwaki enrollment regime excludes from membership a number of sons and daughters of non-Meskwaki fathers, many of whom play central roles in the spiritual and communal life of the community.
Here’s the thing: there is no “sweet spot” where such regimes become perfectly coterminous with community membership. The notion of definition itself does violence to the identity thus defined. A lot of Indians know this — I’ve met folks who have explicitly refused to play along, destroying their blood quantum cards and rejecting their enrollments. As admirable as this is, though, where would their sovereignty be if all the members of, say, the Navajo or Lakota or Ojibwe did likewise? So is it the case that Indian sovereignty depends on Indian willingness to sacrifice part of their identity to the very state they are claiming autonomy from?
My goal here wasn’t to pronounce on what Indians ought or oughtn’t do, but to introduce into the concept of Indianness — or, rather, of ethnic identity altogether — the complexity that, um… well, defines it. (Tarnation — that damn word!)
I’m approaching this from the legal, not the anthro (a dirty word in Indian country, by the way) perspective, and I’m simply trying to get one point across: that any outside interference with a tribe’s determination of its own membership criteria is improper. It doesn’t help to talk about culture or the under- or over-inclusiveness of any given “definition” of “Indianness”. Attempts to do so are just updated versions of the colonialist impulse that got us here in the first place.
You said: “So is it the case that Indian sovereignty depends on Indian willingness to sacrifice part of their identity to the very state they are claiming autonomy from?” You misunderstand me. I didn’t give up my autonomy to be a citizen of the United States, and I didn’t have to give up my ancestral connection with the Blackfeet Nation by continuing to be a citizen of the United States. As well, Indians don’t give up autonomy in order to gain tribal membership. It’s just that each tribe has its own manner of determining its membership, and this method may bear little resemblance to the citizenship regime used by the United States, or any other nation for that matter.
Tribal sovereignty depends on the fact that the United States dealt, on a nation-to-nation basis, with the tribes, the strongest evidence for which are the treaties. The U.S. gov’t recognizes that this sovereignty includes the tribes’ exclusive right to determine the contours of their own membership. The U.S. Supreme Court has often recognized that tribal sovereignty, in essence, is “the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 220 (1959). Put another way, the right to be left alone, to govern themselves as they see fit. An outsider’s “analysis” of “the way things ought to be” necessarily implies some inherent deficiency in the way the group does things. It is that implication that is highly offensive to a tribal sovereignty advocate.
You also said, “My goal here wasn’t to pronounce on what Indians ought or oughtn’t do, but to introduce into the concept of Indianness—or, rather, of ethnic identity altogether—the complexity that, um… well, defines it. (Tarnation—that damn word!)” I beg to differ: although you may not think that was your goal, you ended up accomplishing it. Do you honestly think that Indians are too stupid to recognize on their own the complexity you seek to introduce or that the thought hadn’t occurred to at least a couple of them at some point? Indians are conflicted, and they know that. Many Indians served the U.S. proudly, even knowing that the army of those same United States had actively prosecuted wars of genocide against them in the not-so-distant past. Conflicted? Complex? Hell, yes. But they go on, as they always have and always will.
Do you think that, after centuries of Indian-white contact (and conflict), what Indians really need/lack is a sense of the “complexity” of their situation? What Indians need, first and foremost, is the recognition from the wider community that their ways and their laws are just as valid and that their government structure is just as much a “real government” as any other government. They understand that their situation is “complex”. They understand that they (to use a trite expression) “walk in two worlds.” The only thing they don’t understand is why legions of self-impressed anthros continue to troop to their reservations to try to tell them how to do things.
Do my posts reflect an “uncharitable reading” or a “very poor” reading of your first post? Maybe. But then again, I’m not submitted my posts for a grade from you.
Brian, I\’d be very surprised if only Indians were reading this blog. And I defy you to find an instance of me telling Indians what to do.
That said, while you are right about sovereignty, the fact remains that even on legal terms none of this is clear-cut. If it were, this post wouldn\’t exist becuase the story wouldn\’t exist because the situation wouldn\’t have happened.
ACtually, on re-reading, I’m starting to think that your reading isn’t “uncharitable” but just wrong. You start with a call for looking at the history and motivation of the act, which I explicitly laid out in the post. You then take me totask for attacking ICWA, which I explicitly do *not* do. Then you accuse me of, I think, downplaying Indian sovereignty and downplaying the colonialist forces within which the concept of sovereignty has evolved, and yet I directly address that. Are you reading the same post I wrote?
Brian, do you feel this is an example of forcible removal from the child’s family (assumming it was the mother’s choice to give up the child for adoption)? If yes, why? If no, then how is this an example of the IWCA working “remarkably well”?
ICWA, of course.
Just an update on the original case…Kelly Buffalo’s parental rights were voluntarily terminated on August 9, 2006. Braven Buffalo is living a native foster home, off the settlement, not with family and is NOW available for adoption!!! Meskwaki Family Services is following ICWA and searching for an adoptive home for him. They are not having much luck finding a NATIVE home for him. This is upsetting considering that this poor PERSON (Braven is not property)could have been bonded with the original family willing to adopt him in the first place. I understand they are still willing to adopt him but the Meskwaki tribe won’t allow it. This is NOT what ICWA was intended for. Braven WILL suffer from this experience. He will always have bonding issues. God willing, they will find a home for him!
I get so tired of hearing about how tribes alone have the right to determine who is or isn’t eligible for membership and that therefore ICWA is somehow justified. That’s all well and good, but to make that the criteria for applying ICWA does not serve the child’s best interests. My adopted boys are 1/16 Native and were thus eligible for membership in their tribe (to which they had no connection). If the tribe wants to enroll them as members, I have no real objection to that. I do have an objection to social workers who said that because of their eligibility, they were going to remove them from our home (as they tried to do, ignoring good cause in the process). Those boys were thriving for the first time in their lives, and they were going to be taken from us because one of their sixteen great-great grandparents was Native American. Let’s not forget that fifteen of their great-great grandparents weren’t Native American. That makes them Native AND American citizens. Are we going to erase their American, Anglo, Hispanic, and German heritage because of ICWA? Is that fair to them?
I’m sure this is a little off topic…
A tribe has a right to govern their people anyway they want whether I, you, or anyone deems it unfair because it is their right and their place to weigh those decisions and make a choice. However, obviously being Indian has nothing to do with being enrolled and I think if a person wanted to get in touch with their culture they could do that even if they are highly restricted…and if they choose not to get in touch that’s their choice too. All I’m saying is why worry about something that’s not ours to control and start trying to fix something that is. If we wanted to change something it could be providing cultural information and identity to those who aren’t enrolled, but who’s ancestor’s were. To people who are restrained from becoming a part of a tribe, but who have a right to being Indian. Why not let tribes deal with tribe business and start dealing with the people who are falling through the cracks. I’m not talking about providing money for people who are considered to only identify themselves as “indian” for money. I’m talking about providing information from enrolled Indians for nonenrolled Natives. If you think about it this would be giving those “wannabes”, as people call them, what they want and providing jobs for enrolled members. Obviously I don’t know a lot about this, but I think it’s more important to look for potential solutions in a situation rather than ONLY potential problems.
Cai,
The point here isn’t whether the case I’ve described is fair or unfair or anything else — the real question raised is who “their people” are. Let me give an example: my mother’s mother was Indian. She took off when my other and her brother were still little, and my grandfather remarried, and nobody mentioned her for 50-odd years out of respect for my grandmother, and when she passed away nobody remembered anything specific about my mother’s mother (e.g. tribal affiliation, blood quanta, etc.). Now, *I* think that makes me pretty clearly “not Indian”. But who knows — she could’ve been “full-blooded” which would make me 1/4 and her nation’s enrollment standard might recognize that — what if they went through their rolls and tracked me down and said “ok, from now on you’re under our jurisdiction”?
Purely hypothetical, of course — but the question is, how do personal notions of identity articulate with the needs of governance? This is prior, to me anyway, to questions of fairness and unfairness.
On your “modest proposal”, it’s my experience that most Indian peoples aren’t particularly enamored with the desires of non-Indians — that is, folks outside their community for whatever reason, whether total unrelatedness or just lack of enrollment eligibility — to learn about “their” heritage. Folks that are part of the local community, enrolled or not (and there’s plenty of very active Meskwakis that are not enrolled) don’t have that problem — they learn by participating. Folks that are *not* part of the community — again, enrolled or not — are generally not considered to have much entitlement to local knowledges. While the law — whether federal or tribal — may recognize some folk as “belonging”, the community itself might never do so.
I see your point and admit that circumstances must be pretty difficult for people like your grandmother. Since there are two different community’s with their own laws it will be complicated to find any solutions or common ground…is that what we are trying for here?
I cannot believe after all of this time that Kelly Buffalo still gave her child up for adoption, and that the child still was not in a home. I worked in Tama for sometime and knew one of the only adoptive families on the sett. They had their fair share of children already. Everything should be looked at case by case, as opposed to a blanket of all “indian” children belong with “indian” families. Something ironic, the family that adopted many native children on the sett, the mother was white. So even this wasn’t a “pure indian” household.