Once upon a time, a long time ago, oh, about 1978, the Indian Child Welfare Act or ICWA was passed. It was amended in 2003. Its purpose was to stop Native American children from being swept off the reservation and into adoptive homes where they would not be taught the ways of their heritage. The reason for federal legislation was alleged rampant removal of children from reservations and into foster and adoptive homes off the reservations.
During the late 19th century, and through a part of the 20th century, that was no doubt true. There was many a school opened by more than one Protestant group specifically as a boarding school without parental visitation to make such children assimilate into the culture of the US without reenforcing their native culture, to the point where their prior names were taken from them and given "real" names, American names. Oh yes. They were also taught a trade. For their own good, of course (cough, cough). Breaking up families in the name of God and the US.
For further in-depth study on such circumstances, I highly recommend you read the Education of Little Tree. If you liked that, follow up with the Bean Trees, followed by Pigs in Heaven.
Let's move on to the 21st century. The various tribes have all this great land, and their own government. They've gotten into businesses to make revenue to share with their tribal members. Casinos, yes, but also hotels, shops, restaurants, fishing tours, high impact outdoors adventures! With all that revenue, suddenly people were popping out of the woodwork, claiming tribal membership.
The idea of the majority of full-blooded Native Americans living on the reservation, trading in wampum, eating buffalo and riding war ponies out to the edge of their designated-by-the-federal-government tribal lands is about as outdated as corsets and buggy whips. The various members of various tribes have married into many European and African families. You may even be part Indian of some sort and not know it.
What do these two things have to do with each other? It seems everybody is suddenly an Indian, at least partially on his mother's side, or his father's, or both but different tribes. It sadly also seems the ICWA can be used to scare custodial grandparents who may not know better into giving up custody of their grandchildren to avoid putting them through the emotions of a trial, or the alternative idea of spending their lives on the reservation as wards of the tribe, bereft of their other family; not to mention spending one's life savings to protect those grandchildren. It can mean many a sleepless night for an uninformed and frightened custodial grandparent.
Of course, I'm not an attorney, and I don't even play one on TV (old joke). But I consulted a couple of attorneys on the matter, and asked some questions of the various tribes as well as the National Indian Child Welfare Association, or NICWA.
First, baby daddies and mamas who are irresponsible still don't get automatic custody based on ethnicity. If they are addicts of some sort, or have issues such as bipolar disorder, don't plan on them to get their acts together enough to hire a lawyer and file a proper case. The chances of that happening are remote. If they were that capable, the odds are good they would still have the kids, and wouldn't be threatening you. Besides, they would have to find a source for money to pay for it, or somebody to represent them pro bono (free). They would have to go to a court and prove that they are the people who should be raising the children in the children's best interests. Don't worry.
Second, just because Lulabelle hooked up with Johnny Big Snake and he is the defacto or even legal stepfather, doesn't mean he has some sort of rights to the grandkids because he is Native American. Those children share no blood heritage with him. It also works the same way if Johnny is Johnie, even if she claims to be an Indian princess. This goes even if they create a biological half-sibling or more to the brood you're raising now.
Third, and possibly the most important, is the question: Is the person who suddenly wants these children claiming Indian heritage really an Indian; specifically, is he or she a tribal member who is recognized as being a prescribed percentage of Native American blood, as designated by the tribe in question?
Each tribe sets their own standards, namely who is a tribal member, and who is not. Honorary membership from attending a powwow or other tribal festival or ritual doesn't count for any tribe. Further, what counts for the Five Civilized Tribes doesn't count for the Navajo, and what counts for the Cherokee doesn't count for the Seminole, and certainly not for the Osage or any Apache or Aleut for that matter. It's just not that easy to prove one is entitled to tribal citizenship.
I can say, on the whole, the tribes are looking at bloodlines; in other words, genealogy. Applicants have to prove they are what they say, not simply say it. The Oklahoma Cherokee, for example, want strong proof, listing on the Dawes or other rolls of ancestors; original birth certificates , not just for applicants but their parents, grandparents and even great-grandparents; former addresses and anything else to back up the application, including DNA tests. The process takes no less than 10 months, and often 12 months or more.
Adults must apply for membership. This means just because your ex-husband has gotten a sudden yen to discover his heritage and applies for tribal membership with significant proof, your adult son is not automatically a tribal member. Junior has to submit his own paperwork.
Percentage counts as well, when considering whether or not the grandkids are Native American. This list indicates a wide variety of coverage, from 1/8 to any degree of kinship. When you hear the term "quantum bloodline" that's what is meant.
There are organizations, such as the United Cherokee Nation, that are clubs for those claiming Indian bloodlines. These clubs are not official organizations recognized by the tribes or the United States as tribes, for purposes of verifying tribal membership, and they usually don't claim to be. Therefore, a membership card to some organization doesn't necessarily prove tribal membership.
Even if the alleged parent has a Certificate of Degree of Indian Blood and a tribal citizenship card, there is still the question of whether or not the grandkids are Indian, if not by percentage, then by tribal registry. If you have custody, especially if they have already been adopted by you, you control whether or not they can be registered with the nation in question. Parental rights might have been terminated, whether by the biological parent's own choice or through declaring him and/or her unfit. Birth certificates have been changed. In many states, the adoption was closed, and therefore the files on the case have been impounded or sealed. Hopefully, you have moved from your previous residence and are careful in giving out your address and phone number. Again, it seems like a lot of hard work for individuals (the adult children) who can barely function or earn money legally, to go chasing you down with the tribal court as a weapon.
Finally, the ICWA concerns exclusive jurisdiction over Indian children ONLY where those children who are domiciled or reside on the tribe's land, or are wards of the court or the tribe. That means IF the children were under a very defined set of circumstances, then and only then would the tribal court in question be the court of choice. The chances of your adult child's partner in creating Life going to this extreme, or of your grandchildren being in such circumstances, are very slim.
In all other circumstances, the state courts have concurrent jurisdiction. Again, under very prescribed circumstances for jurisdiction, there is a choice of whether to proceed in tribal or state court. There are plenty of reasons not to use tribal courts and to object to them, two of which where the children over the age of 12 who are the subject of the proceeding choose the local court (the kids who are involved don't want tribal court), and where it would cause a burden of expense to use tribal courts.
In instances where grandparents are raising grandchildren, and where the tribal court chooses custody and guardianship, extended family is the first choice by law. Yes, the whole thing might have to be decided again, but the parent in question still has to prove he or she is up to the task of taking care of the children in question. The grandkids won't simply be removed from your home and care, flopped on the reservation and made wards of the tribe in question simply on your adult child's baby parent's word alone.
Finally, in circumstances where custody, guardianship or adoption have already been completed, the tribes are reluctant to uproot a child for no other reason than the child might have Indian bloodlines. This is especially true if you knew nothing of this alleged Indian bloodline prior to the custodial circumstances, especially adoption.
If Junior or Lulabelle threaten you with "Indian court" in a fit of rage, substance-induced or not; if you hear from your previously irresponsible ex-spouse, who was deemed by a court an unfit parent back in the day, that he is considering taking custody from you, based on his new found Indian heritage (especially if he's never met the children); if you catch wind through the extended family grapevine that So-And-So said this-n-that when talking with your adult child; if you read on your adult child's Facebook page that he's taken up with a genuine Kickapoo Princess and their alliance will win back custody of the kids, and with it his entitlement to food stamps, welfare money and your retirement check; RELAX. Until you have a summons in hand, nothing has happened. The possibility is good nothing will happen. If you do receive real legal paperwork, the odds are with you, and you will find the best legal representation you can afford.
(Special thanks to the Cherokee Nation, whose representatives answered so many questions so patiently for absolutely free!)
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