The New Trail of Tears

by Naomi Schaefer Riley

  But the court seems to have left open some important questions. Such as why taking race into account in adoption cases is illegal for every group in the United States except Native Americans. And why is anyone determining custody of a child based on anything other than the best interests of that child? Why does a tribe’s quest to ensure its demographic and cultural future matter when the welfare of a minor is at stake? And perhaps most importantly, are American Indian children really receiving equal protection under the law?

  In his concurring opinion, Justice Clarence Thomas hinted at these problems. “The notion that Congress can direct state courts to apply different rules of evidence and procedure merely because a person of Indian descent is involved raises absurd possibilities. Such plenary power would allow Congress to dictate specific rules of criminal procedure for state-court prosecutions against Indian defendants. Likewise it would allow Congress to substitute federal law for state law when contract disputes involve Indians.”2

  Aside from its obviously discriminatory implications, Walter Olson, a senior fellow at the Cato Institute’s Center for Constitutional Studies, says that “the not-very-well-disguised secret of ICWA is that it heavily benefits tribes, and the interests of individuals and families will be sacrificed to tribal interests.” The initial victory that the biological father received in the Baby Veronica case, Olson says, “had nothing to do with the biological father. It had to do with the tribe. The tribe’s rights trumped the child’s rights.”

  In 2000, Johnston Moore and his wife took two foster kids, boys ages 4 and 5, into their home in Long Beach, California. They were told that one boy was Caucasian and one was Caucasian and Hispanic. The boys adjusted well; they even called Moore and his wife “Dad” and “Mom.” Moore says, “It was a match made in heaven.” He and his wife wanted to make the situation permanent.

  One day they received a call from child services telling them that the boys’ Indian paternal grandmother wanted custody. The court battle lasted years, despite the fact that the boys’ biological mother favored the Moores. In any other case, a noncustodial grandparent would hardly be able to contest a legitimate adoption. But in order to hold on to their children, Moore and his wife had to convince the court that they were going to make them aware of their racial heritage. ICWA’s provisions still outrage him. “A kid who is 1/512th Cherokee and lives in Tallahassee? You’re going to ask a tribe about him? Why should a tribe in Kansas get to determine where my kids are?”

  Ultimately, Moore and his wife prevailed, but like so many others who have been exposed to the problems of ICWA, Moore is determined to change it.

  “I don’t believe that when a child needs foster care we need to take them off the reservation,” he tells me. “If there are families there, great.” He compares the situation to foreign adoptions. “It’s the same as Chinese orphanages. If Chinese families would adopt them, great. Same with Kenya and Ukraine.” But that doesn’t happen in many Indian communities.

  Moore founded the Coalition for the Protection of Indian Children and Families, a group devoted to reforming ICWA. He acknowledges that politicians had a “valid point” when the law was passed. “Social workers were coming in and applying non-Native standards and taking kids away from their families. Our government had this ‘civilize the savage’ mentality. There were organizations just trying to get kids off the reservations.”

  Like many federal laws related to Native Americans today, ICWA was passed with good intentions – to rectify the problem of too many Indian children being removed from their families and communities without good reason. As the Supreme Court noted in its 1989 decision on the constitutionality of ICWA, Congress found that “an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of the children from them by non-tribal public and private agencies.”

  Sometimes social workers would cite poverty as a reason to remove a child from his or her family. Which is to say, they might determine that a child being raised in a loving family would be better off elsewhere – even if there was no suggestion that the child was in any real danger. (These standards, of course, would be enough to remove plenty of white children from their homes as well.) ICWA was enacted to stop what the Supreme Court called the “wholesale removal of Indian children from their homes” that resulted from such practices.

  When Mark Fiddler, a member of the Turtle Mountain band of Chippewa Indians, graduated from the University of Minnesota Law School in 1988 and went to work as a public defender, the motivation behind ICWA really appealed to him. “I supported the idea of trying to keep Indian kids in Indian homes whenever possible. I tried to prevent their unwarranted removal.” His office oversaw around 2,000 placements of Indian children each year. Later, when he went into private practice in Minnesota, he continued to represent Indian parents and kids.

  Fiddler didn’t grow up on a reservation, but he spent many of his childhood summers on a reservation with his uncle, in a home with no running water. But lack of indoor plumbing, in and of itself, didn’t make his uncle an unfit parent, notes Fiddler. As public defenders, Fiddler says, “We were there to ferret out the removals based on prejudice. I subscribed to the theory that was the problem.” The reason that so many children were being removed from their families, Fiddler assumed, was racism.

  Over the years, Fiddler came to see there was another, much more significant, problem. “As I started handling more child protection cases and seeing up front the alcoholism and drug abuse history and the history of adults being sexually abused themselves and raped, then you realize this has been going on for generations.” In other words, many of the children were being removed because they were in danger. And a disproportionately high number of Indian children are in danger every day.

  If you compare Indian communities to other impoverished areas in the United States, you’ll see similarities in terms of single motherhood, teen pregnancy, drug use, and violence. Indeed, Morris believes the core of the problem is “family disintegration,” caused largely, she says, by government subsidies. Her husband was married once before, and he acknowledges that he wasn’t always there for his wife and children. But, says Morris, “It didn’t matter if he took off for three months on a binge. They had HUD housing, they had food stamps, fuel assistance, tribal health care. He wasn’t needed. If he thought his family wouldn’t have had food, he would have behaved differently. A man does need to feel needed. But the government took care of all that.”

  The government’s replacement of the father in the home has devastated communities across the country, and not just Native American ones. But fatherlessness or unemployment alone can’t explain the levels of child abuse and sexual abuse in Indian communities.

  Most tribal leaders, health professionals, and observers of Indian communities blame boarding schools for the high rates of physical and sexual abuse on reservations. It’s hard to determine exactly how many children went to boarding school willingly – many families, including Fiddler’s, thought it was the best way to get an education – and how many were forcibly removed from their homes, but there’s no doubt that there was widespread physical, sexual, and emotional abuse at these institutions. Children were ripped from their families and communities, they were forbidden from speaking their native language, and many were preyed upon by teachers and administrators. When they returned to their families, they often had difficulty functioning. Many adults still can’t talk about their experiences. And it has significantly affected their ability to raise their own families.

  Writing in the New York Times, Joe Flood, a high-school teacher on the Pine Ridge reservation, explains the epidemic of suicide there:

  Tribal leaders and experts are struggling to understand the recent suicide epidemic (specifics on many of the cases aren’t widely known), but there’s general agreement on one underlying cause: the legacy of federally funded boarding schools that forcibly removed generations of Native American children from their homes. Former students
and scholars of the institutions say that the isolation and lack of oversight at the mostly church-run schools allowed physical and sexual abuse to run rampant.3

  Some media outlets seem to find it impossible to report about any social problem on an Indian reservation without mentioning these institutions. A recent NPR story on high levels of heroin abuse on reservations blamed boarding schools first. Once boarding schools were established as the primary reason for the problem, the reporter got around to explaining that “Mexican drug cartels are specifically targeting Indian Country. High unemployment on the reservations means many turn to trafficking and dealing. The cartels know the tribes lack law enforcement resources.”4 That seems to be a bit more of a direct connection than the idea that people are depressed and more likely to use drugs because they or their parents or grandparents attended a boarding school 25 or 50 years ago.

  Still, regardless of whether the boarding-school experience can explain all the pathologies of Indian country, the schools have left an undeniable legacy. A mental health professional who has worked with residents of reservations tells the story of an enrolled member of a tribe in Montana who told him he used to poop in his pants rather than go to the bathroom so he wouldn’t be sodomized by a priest at his boarding school. When the victim grew big enough to defend himself, the abuse finally stopped. But the victim also acknowledged that he turned around and did the same thing to younger children.

  If you talk to residents of reservations, says Fiddler, “you realize this has been going on for generations.” On the “macro-level,” he notes, “you have this narrative about disproportionate placement rates” – that is, the idea that Indian children are being removed from their homes at a higher rate than children of other races. But then, says Fiddler, “there is the micro-level of reality with parents.” He says that there’s a “cycle of dysfunctional parenting that is passed from generation to generation.”

  One of the communities most devastated by this cycle has been the Spirit Lake reservation in North Dakota. The New York Times began one damning report on the reservation in 2012 as follows:

  The man who plays Santa Claus here is a registered child sex offender and a convicted rapist. One of the brothers of the tribal chairman raped a child, and a second brother sexually abused a 12-year-old girl. They are among a number of men convicted of sex crimes against children on this remote home of the Spirit Lake Sioux tribe, which has among the highest proportion of sex offenders in the country. . . .

  The reservation has 38 registered sex offenders among its 6,200 residents, a rate of one offender for every 163 residents. By contrast, Grand Forks, N.D., about 85 miles away, has 13 sex offenders out of a population of 53,000 – a rate of about one in 4,000. In one home on the reservation, nine children are under the care of the father, an uncle and a grandfather, each a convicted sex offender, a federal official said. Two of the children, brothers who are 6 and 8, were recently observed engaging in public sex, residents said.5

  The complete breakdown of civilization at Spirit Lake is a complicated story, and the blame lies partly with the tribal and federal officials who have let it go on. But let’s stipulate that this behavior is not normal. Grown men don’t generally prey on 12-year-olds. Young children don’t engage in public sex. And poverty isn’t enough to explain this depravity. There’s something very disturbing happening in some of these communities.

  And it’s not only Spirit Lake. At the Red Lake Chippewa reservation in Minnesota, one mental health professional received reports of 75 children between the ages of 5 and 15 who were “dryhumping” and having sexual relations with each other on a school playground. Where did they learn this behavior?

  For many reservation residents, there’s little in the way of help for past abuses or any kind of rehabilitation. Joni Renbarger, who has worked as a psychologist for the Shoshone tribe as well as for Indian Health Services, tells me, “There are hardly any resources for these kids.” There is “a lot of depression and anxiety” resulting from abuse. Renbarger has worked in different drug and alcohol treatment programs and been “shocked” by how badly run some of them are. “The files didn’t even have labels on them with names. There was paperwork everywhere. They didn’t even have a voicemail system or a file system.”

  The schools, she says, were of little help in handling the problems of these children. And Morris concurs that often the educational institutions were only contributing to the problems. Both on and off reservations, schools seem reluctant to crack down on poor performance and bad behavior from Indian kids.

  Increasingly, Morris feels as if she’s fighting a losing battle. The institutions that are supposed to be helping these children – from schools to the tribal health services to law enforcement – seem to be falling down on the job.

  Renbarger typically sees clients on an outpatient basis, but she perceives tremendous need for an inpatient facility based on the severity of the addiction problems on the reservation. In addition to adults, she has worked with teenagers. “There is no family support. The parents are in jail or have already died. Or the parents are too busy with their own substance abuse. Some are living with grandparents.”

  Renbarger says that the “psychological and social problems of the community begin with child protection. The kids are shifted from family to family. There is neglect, abuse, and death. The situation perpetuates itself.” She tells me that “the lack of stable environments for children” is the first problem that has to be tackled. Of course, there’s “historical trauma,” she acknowledges. “But the question is how do we move beyond that? Some of that has got to be providing secure, safe attachments for children who are being yanked around.”

  How can we put a stop to the cycle? The answer doesn’t lie in simply improving the economic situation or educational outcomes. It has to involve better child services and better law enforcement. The people responsible for crimes against children need to be punished. Even if they’re acting out because of some past trauma, they can’t be permitted to inflict it on another generation. But there’s a serious law enforcement problem here.

  In 2012, Michael R. Tilus, director of behavioral health at the Spirit Lake Health Center, e-mailed state and federal health officials about what he saw as the “epidemic” of abuse on the reservation. In July of that year, according to a report in the New York Times, “a 2-month-old girl died there after tribal officials had received warnings of child abuse, according to a federal official, and in May 2011, a 9-year-old girl and her 6-year-old brother were sexually assaulted before being stabbed to death and left under a mattress. Their bloody bodies were discovered several days later.”6

  Tilus, who had worked for the Public Health Service for 10 years, was actually reprimanded for sending the e-mail. His superiors at the clinic at Spirit Lake accused him of “engaging in action and behavior of a dishonorable nature” because he hadn’t gone through the proper channels to register his complaint. They rescinded his promotion and transferred him to another position.

  Tilus responded to the punishment: “After significant thought and with great concern for the protection of my patients, I acted as a whistle-blower and made a lawful disclosure by raising my concerns about the health and safety of these abused children to more than just my direct supervisors, but to multiple appropriate agencies who could be intimately involved in resolving this public health crisis.”7

  A few days after the Times reported on the reprimand, the director of the Indian Health Service rescinded Tilus’s punishment,8 and in October 2012, the Bureau of Indian Affairs took over the tribe’s social services. But according to an investigation by PBS’s Frontline, “Some residents have questioned how much has changed.” In February 2013, the Bureau of Indian Affairs conducted a “town-hall meeting,” in which it told local congressmen as well as residents that it was “following up on several hundred abuse allegations and had hired additional staff to handle the high caseload.”9

  Meanwhile Thomas Sullivan, who was named regional adm
inistrator of the Administration for Children and Families in 2002, picked up where Tilus left off. So far he has issued 13 different “mandated reports” about the problems on Spirit Lake. They’re mandated not because his superiors asked him for his input – they don’t seem to want them. Rather, the reports are mandated by law, because teachers, psychologists, and others who work with vulnerable populations are required by law to report abuses. Here’s a sample from Sullivan’s most recent report:

  The Tribal Elder who observed two little boys engaging in anal sex in her yard did call police immediately. No one in law enforcement took her statement. She tried to tell her story at the February 27, 2013 Hearing but she was shushed by the US Attorney, the BIA leadership and all of those on the platform. The US Attorney did say publicly that he would speak to her privately after the Hearing concluded. He did not. Nor did anyone from his office take her statement. How did these actions protect children?

  One day later, on February 28, 2013, these same two boys were observed by two little girls engaging in oral sex on a Spirit Lake school bus. The little girls reported this to the bus driver, their teachers and the school principal.

  All of these responsible people kept quiet about this incident. None filed a Form 960 as required. How do these actions protect children?