Abstract
This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.
Highlights
The first photo above is of Professor Wenona Singel’s sister, Christina, and her son
The American State Papers reprinted a speech from Cornplanter, the Seneca leader, who recounted the terror that American soldiers focused on attacking Indian women and children inflicted: The voice of the Seneca nation speaks to you, the great councillor, in whose heart the wise men of all the Thirteen Fires have placed their wisdom. . . . When your army entered the country of the Six Nations, we called you the
American history began with kidnapping and captivity of Indian children for military and political reasons, and the exploitation by federal officials of Indian children’s welfare for diplomatic purposes
Summary
The first photo above is of Professor Wenona Singel’s sister, Christina, and her son. 2017] THE FEDERAL–TRIBAL TRUST RELATIONSHIP 887 cause they believed that Indian children would be better off in the long run in white, middle-class homes Their mother and her sister, the middle picture, were taken by Catholic Social Services in Detroit in the early 1950s and placed with their adoptive parents in an adoption in 1958, without any written documentation whatsoever. In the beginning of the Coercive Period, Indian nations continued to negotiate treaties and other agreements designed to preserve the safety, welfare, education, and land rights of their children, and for a time the United States honored those obligations. State, and religious officials again turned to kidnapping and imprisoning Indian children in oppressive boarding schools, isolating them from their families, nations, and lands.[16] These educational abuses continued into the mid-twentieth century.
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