ALI Reporters on the Historical Basis for the Trust Relationship between the US and Indian Children

and | August 28, 2016 | American Indian Law

Project Reporters Matthew Fletcher and Wenona Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN*.

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.

This post originally appeared on Turtle Talk, the blog for the Indigenous Law and Policy Center at Michigan State University College of Law on April 28, 2016.

Future drafts of the Restatement will tackle this difficult issue.

*Fletcher, Matthew L. M. and Singel, Wenona T., Indian Children and the Federal-Tribal Trust Relationship (April 28, 2016). Nebraska Law Review, Vol. 95, No. 4, 2017. Available at SSRN: https://ssrn.com/abstract=2772139 or http://dx.doi.org/10.2139/ssrn.2772139

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Matthew L.M. Fletcher

Reporter, American Indian Law Restatement

Matthew L.M. Fletcher is the Harry Burns Hutchins Collegiate Professor of Law at University of Michigan Law School. He teaches and writes in the areas of federal Indian law, American Indian tribal law, Anishinaabe legal and political philosophy, constitutional law, federal courts, and legal ethics.  He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians and sits as the Chief Justice of the Pokagon Band of Potawatomi Indians and the Poarch Band of Creek Indians.

Wenona T. Singel

Associate Reporter, American Indian Law Restatement

Wenona T. Singel is an Associate Professor of Law at Michigan State University College of Law and the Associate Director of the Indigenous Law & Policy Center. She served as Deputy Legal Counsel for the office of Governor Gretchen Whitmer from January of 2019 through January of 2021, advising Governor Whitmer on tribal-state affairs. Her other professional activities have included serving as the Chief Appellate Justice for the Little Traverse Bay Bands of Odawa Indians and service as the Chief Appellate Judge for the Grand Traverse Band of Ottawa and Chippewa Indians. She is a magna cum laude graduate of Harvard College, and she received a J.D. from Harvard Law School.

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