The Brackeen oral arguments at the U.S. Supreme Court may have concluded on November 09, 2022, but the undue outside state and private influences over what constitutes Indian Child welfare is far from over. Indian Child Welfare Act was a federal law passed in 1978 to slow the sieve of Indian children that were routinely removed from their homes, extended relatives, and communities. This separation policy was invariably started over an unwritten interest to gain control over the child’s land and resources that Indian children were uniquely eligible to inherit. Indian lands are often described historically, and incorrectly as “public lands”.  This mischaracterization of Indian lands provided non-Indians some ill-conceived rationale for why they thought Indian land was up for grabs. It was an intentional and convenience-based mischaracterization. Indian land remains Indian land as a matter of contract and trust law that unless an express, applicable Act of Congress provides for the abrogation of Indian title and interest in exchange for just compensation, the status of the land is unalterable and inalienable by third parties. Under contract theory, changes to the contract’s terms require the consent of both parties. To practice in any other way would upend contract, property, and probate laws as we know them.

It is important to note that in Eastern Oklahoma allotted Indian lands were intended to become fee simple titles, by due course of time. The process could be disrupted under a scenario that occurred far too commonly when illegal conduct and violations of federal law did cause the federal application of restrictions (against alienation) to remain legally intact. It resulted in heirship land appearing to transfer to third parties only “on paper.” It was routine for states, some more than others to grab Indian land protected under federal law. Non-state child placement “specific church-based programs” that were allowed to remain off the radar were involved in the involuntary and voluntary control over the Indian child. ICWA placed a burden on the tribes because the tribes were and are obligated to step up and enforce ICWA, and for years tribes were lacking interest or resources, and sometimes both were in short supply. To date, ICWA is currently enforced in state courts.

Helen Nowlin is an advocate for parents; she encourages them to decide what is best for their child/ren. This position is based on the recognition that most parents do want the best for their children and sometimes that requires accepting counseling and family intervention therapy. Many common problems inflict families these days that affect all children regardless of whether the household identifies itself as American Indian, Caucasian, Latino, Asian, Black, or multi-ethnic. Family reunification should always have been the intention of any legally proper social service program. Sadly, reunification hasn’t been the focus under the state system and even less so since the late 1990s when federal financial incentives were first offered to states to adopt-out children within 18 – 24 months from the date of a child’s first placement into the foster care system. What was and is unique to American Indian children was the effort to assimilate and colonialize them by the United States in a concerted effort to gain access and privatization of millions of acres of Indian land. In cases where Indian children were murdered (https://www.buzzfeednews.com/article/briannasacks/boarding-schools-indigenous-children-reportor) or by all accounts effectively ignored on paper during bogus state proceedings, states eagerly marked off Indian land as private land and available to the first white person to take. For years, the presence of a white person and a state-issued “deed” was used as evidence and given a PRESUMPTION by state courts, the Indian title and interest had been divested. It represented bad faith and as it turns out based, on Helen Nowlin’s extensive research the presumption is FRAUDULENT in many cases. Those that died at the government and private boarding schools and hopefully their identities determinable, their heirship land and resources can and should be traced back and brought forward to benefit their extended families and /or tribes.

Parents and tribes need to know THEY hold the power to proactively decide for their child’s or children’s / tribal members’ wellbeing. Many parents are capable and deserve to decide who will be their child’s guardian in case they become incapacitated as long as this is decided before the presumption that state jurisdiction applies, and is triggered (defined as events that warrant Child Protective Services to be called and a visit is needed to the individual home). Perhaps, tribes should reconsider this presumption that state jurisdiction has the authority to supplant tribal law and code when tribes have their active interventions for families and are readily implementing these culturally sensitive interventions. Generational poverty is not a ground for removing any child. The theft of Indian land and resource issues are at the root of generational poverty. As experienced consultants, Tribal Consultancy in Environment & Law, L.L.C. has the knowledge to help reverse this form of poverty by updating the heirship title into the legal heirs and to clear ownership in those who should have benefitted from the estate and probate process.

Regardless of how the U.S. Supreme Court decides Brackeen, American Indians, and Indian tribes can implement a backup that was always within ICWA upon careful reading of its text. Helen Nowlin has spent years researching the intersection of Indian child welfare and the theft of Indian lands. It is a forefront and personal matter. You can benefit from my research and how to implement the alternative. Contact me for an initial consultation.

Helen Nowlin, Principal Consultant
                                  360-635-6437  /  tribalconsultantsinfo@gmail.com