Chiricahua Apache children upon arrival at boarding school (l.), and four months later (r.)
(Photos by John N. Choate, 1886-1887, courtesy of National Museum of the American Indian, Washington D.C.)
As the U.S. Supreme Court acknowledged early in the nineteenth century, Native American tribes are sovereign states. As such (and except to the extent a treaty or Congressional enactment provides otherwise), they retain the same power of self-governance that they possessed before the United States was established.1 Their sovereign powers include, among others, the rights to determine tribal membership and to regulate domestic relations among members of the tribe. This includes the right to regulate the custody of children.
When the federal government has not intervened, custody of Native American historically has been decided in accordance with the customary laws of the tribe (or, more recently, tribal codes patterned after state law codes.) While each tribe’s customs and traditions are different, as a general matter it may be said that many of them have tended to be organized around a clan system rather than the nuclear family system familiar to Western cultures. A typical clan consisted of a child’s parent and extended relatives. In such a system, placement with a particular parent may have been considered less important than ensuring continuity of care by members of the child’s clan.2
The Dawes Act
The development of Native American customary law on the subject of child custody was severely disrupted by federal legislation in the nineteenth century. The federal constitution gave Congress authority to “regulate Commerce with the Indian Tribes.”3 Construing this power very broadly, almost as if the constitution had granted it blanket power to regulate Indian tribes (as distinguished from power to regulate “commerce with” tribes), Congress proceeded to enact a series of laws that had the effect – and, some would say, the purpose – of breaking up Native American families. One of the best examples of this was the General Allotment Act of 1887, also known as the Dawes Act.
Federal policy with respect to the regulation of tribes has alternated between attempts to assimilate Native Americans into non-Native populations, on one hand, and efforts to preserve tribal self-determination, on the other.4 The focus in the nineteenth century was on assimilation. A key component of the nineteenth century federal policy of assimilation was to abolish the tribal system of communal ownership of land. The Dawes Act attempted to do this by dividing reservations into parcels of land and then allotting individual parcels of land to individual Indians and their families. In addition, some of the reservation land was allotted to non-Natives, the plan being for these non-Natives to “civilize” the Natives by teaching them modern farming methods and such.
The leading proponent of allotment was Senator Henry L. Dawes, after whom the General Allotment Act of 1887 was named. While some historians portray him as a humanitarian concerned with the long-term welfare of Native Americans, his writings reflect a somewhat different kind of concern. “It was plain,” he wrote, “that if [a Native American] were left alone, he must of necessity become a tramp and beggar with all the evil passions of a savage, a homeless and lawless poacher upon civilization and a terror to the peaceful citizen”5
Unfortunately, federal “assimilation” policy in the late nineteenth century went far beyond eliminating communal land ownership and teaching Native Americans modern farming methods. Federal lawmakers also embarked upon a grand experiment in social engineering that involved taking children from the custody of their parents and placing them in government-run boarding schools.
Throughout the late nineteenth century, federal policymakers viewed Native American children as the solution to “the Indian problem” because they were more malleable/teachable than adult Natives were. It was believed that if Native children could be reached early enough, then it would be possible to prevent their development into uncivilized “savages” like their parents. This was the rationale for the government-run boarding school program. To ensure the success of the program, children were not permitted to speak in their native tongues, to practice their native religions or spiritual beliefs, or even to “look” like Native Americans. As the 1886 Commissioner of Indian Affairs explained:
[T]he adult savage is not susceptible to the influence of civilization, and we must therefore turn to his children, that they might be taught how to abandon the pathway of barbarism and walk with a sure step along the pleasant highway of Christian civilization…. They must be withdrawn, in their tender years, entirely from the camp and taught to eat, to sleep, to dress, to play, to work and to think after the manner of the white man.6
The success of this program is debatable.
The children were usually kept at boarding school for eight years during which time they were not permitted to see their parents, relatives or friends. Anything Indian — dress, language, religious practices, even outlook on life … was uncompromisingly prohibited. Ostensibly educated, articulate in the English language, wearing store-bought clothes and with their hair cut short and their emotionalism toned down the boarding school graduates were sent out either to make their way in a white world that did not want them or to return to a reservation to which they were now foreign.7
Federal policy began to shift toward preservation of Native American customs, traditions, and self-determination in the 1930’s with the Indian Reorganization Act, and then again in 1978 with the Indian Child Welfare Act. By 1971, less than 18% of school-aged Native children were being removed from their homes and placed in federal boarding schools.8 Today, the custody of Native American children is governed by a complex system of state, federal and tribal jurisdictional, procedural and substantive laws. And courts today are no longer permitted to indulge an assumption that removal of children from the custody of their Native American parents is in their best interests.
The complete History of Custody Law is now available in paperback and as a Kindle e-book:
- Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ↩
- In re Custody of A.M.C., 8 Navajo Rptr. 825 (Chin. Fam. Ct. 2004). ↩
- U.S. Const. Art. I, §8 ↩
- F. Cohen, Handbook of federal Indian law, with reference, tables, and index (1971) ↩
- Henry L. Dawes, “Have we failed with the Indian,” 84 Atlantic Monthly 280 (1899) ↩
- cited in L. George, “The challenge of permanency planning in a multicultural society,” 5 J. Multicultural Soc. Work 165, 166 (1997) ↩
- Peter Farb, Man’s rise to civilization as shown by the Indians of North America 257-59 (1968) ↩
- B. J. Jones, The Indian Child Welfare Act handbook: A legal guide to the Custody and Adoption of Native American Children (1995) ↩