Challenges to ICWA based on legally and historically false assumptions

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Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

Posted on April 28, 2016 by Matthew L.M. Fletcher | Turtle Talk

Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN. (click title to download the free pdf)



Here is the 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.

Very important history!