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

Matthew L.M. Fletcher

Reporter, American Indian Law Restatement

Matthew L.M. Fletcher is a Professor of Law and Director of the Indigenous Law and Policy Center at Michigan State University College of Law. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians.  He sits as the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Grand Traverse Band, the Hoopa Valley Tribe, the Lower Elwha Tribe, the Nottawaseppi Huron Band of Potawatomi Indians, the Pokagon Band of Potawatomi Indians, and the Santee Sioux Tribe of Nebraska.

Wenona T. Singel

Associate Reporter, American Indian Law Restatement

Wenona T. Singel is the deputy legal counsel to the Office of the Governor for the State of Michigan. Ms. Singel is the first American Indian to hold this position in Michigan. Her position of deputy legal counsel includes serving as the advisor to the Governor on tribal affairs where she work to strengthen the government-to-government relationship between Michigan’s twelve federally-recognized tribes and the State of Michigan. Before her appointment, Ms. Singel was an associate professor at MSU College of Law and Associate Director of the Indigenous Law and Policy Center. She is a magna cum laude graduate of Harvard College, and she received a J.D. from Harvard Law School.   

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