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Ryan Seelau

Excerpted from: Ryan Seelau, Regaining Control over the Children: Reversing the Legacy of Assimilative Policies in Education, Child Welfare, and Juvenile Justice That Targeted Native American Youth, 37 American Indian Law Review 63 (2012-2013) (333 Footnotes)


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There are, of course, countless factors that have exacerbated the problems encountered by Native youths, and many of these factors have developed over time. Native American juveniles and their families are the product of centuries of internal and external forces - both positive and negative. For over 200 years, the federal government's policies towards Native Americans have been among the strongest of those forces. These policies have historically been designed to assimilate Native Americans into the dominant culture. While that is no longer the goal of federal policies, inadvertent assimilation does still occur and the legacy of assimilation lives on.

Since the time of European contact all Native Americans have been under constant attack. Originally the attacks came in the form of exposure to lethal diseases, consistent violent conflict, and forced relocation, all of which greatly reduced Native populations. Even after the formation of the United States, some Native nations were completely obliterated, while others suffered large-scale wounds to their cultures, families, and ways of life. Over the course of U.S. history, Native Americans were subject to policies of assimilation and termination, which further weakened many Native nations.

Native American children were not shielded from this history of attempted assimilation. Indeed, Native American juveniles have oftentimes been its intended victims. Focusing assimilative efforts on children makes sense (from a colonizer's point of view) considering that children are the logical target for any policy “designed to erase one culture and replace it with another” because children are “vulnerable to change and least able to resist While it might seem that a government would have to be particularly sinister to target children as a means of assimilating a culture, that is precisely what the United States has done over the past 230 years. As one author stated, “The main thrust of federal policy, since the close of the Indian wars, has been to break up the extended family, the clan structure, to detribalize and assimilate Indian

Whether intentional, federal policy over the past two centuries had the effect of breaking up families, indoctrinating Native children with non-Native values, and pulling apart the very social fabric that allows communities to function healthily. Specifically, the federal government's policies with respect to education, child welfare, and criminal justice have functioned to assimilate Native American youth, predominantly by separating children from their families, their culture, and their nations.

A. Assimilation through Education Policy

1. Missionary Schools

Education is a natural place to begin the process of assimilation because whoever controls the education of children, controls - in large part - what those children know, value, and how they perceive the world around them. The history of assimilation of Native American youth through education policy can be traced back to missionaries who started the first Indian schools. These missionaries used formal education as a means of accomplishing their primary goal, namely converting the Natives to Christianity. To achieve their goal they utilized a tactic that would be used repeated over the next few centuries: separating Native youth from their families and kinship groups so that the children could be “Christianized” and “civilized.” As Vine Deloria recounts, “[a]n old Indian once told me that when the missionaries arrived they fell on their knees and prayed. Then they got up, fell on the Indians, and

For more than 150 years, missionary schools were the “chief agent for spreading Christianity and Western These schools were deliberately devoid of any Native culture and at times prohibited the use of Native languages. For more than a century these schools acted with Congress's political and financial support. Despite experimenting with different types of schools and curricula, the missionary schools never made the large-scale changes for which both Congress and the various religious groups had hoped. They were, however, able to set the tone for future educational policies “from religious indoctrination, to cultural intolerance to wholesale removal of American Indian

2. Federal Boarding Schools

Although missionary groups ran boarding schools for Native American children during most of the nineteenth century, the federal government had an increasingly significant role in Indian education during that same time period. By 1838, the federal government oversaw approximately 2900 students in six manual-training schools and eighty-seven boarding schools. In the 1870s, the number of federal boarding schools (and the number of students they oversaw) began to increase dramatically. According to the Bureau of Indian Affairs (“BIA”), these federal boarding schools were designed to (1) replace native languages with English; (2) replace communal ethics with individualistic ethics; (3) convert students to Christianity; and (4) teach U.S. history, democracy and Manifest Destiny.

Richard Henry Pratt, who was responsible for opening the first off-reservation boarding school in 1879, put it more bluntly stating that the purpose of the school was simply to “kill the Indian and save the To accomplish this, federal boarding schools separated children from their families and natural support systems by placing children in schools outside of reservations. Additionally, they punished any child who clung to his or her culture by using Native languages, observing Native religious traditions, or wearing Native clothing.

Despite the magnitude of the federal government's efforts, the boarding schools failed to assimilate Native children as completely as had been hoped. Due to these failures, some believed the answer lay in the “earlier, longer, and perhaps even permanent removal of American Indian children from their families and Thus, the “Outing System” was created in which a Native child was placed with a white family to completely isolate the child and immerse him or her in white culture. In many respects, the Outing System was little more than state-sponsored kidnapping, and to make matters worse, the living conditions at these schools were often very poor. High morbidity and mortality rates were commonplace, meaning that some Native parents never saw their children return from school. For children who did return after their schooling, they oftentimes felt completely disconnected from their family, friends, and community.

By 1928, the Meriam Report was published and boarding schools came under heavy criticism. The report advised the BIA to abandon assimilation as the goal of education. In 1934 the Indian Reorganization Act attempted to accomplish this by shifting the responsibility of Native education to the states; however, this shift in policy was short-lived. By 1944, a congressional report called for a return to off-reservation boarding schools, and by the 1950s, the federal government's policy of assimilation through the termination of tribes was in full-effect. As late as 1974, over 34,000 Native American children remained in federal boarding schools, which represented more than 17% of all Native youth.

Fortunately, in 1972, Congress passed the Indian Education Act, and, in 1975, the Self-Determination and Education Assistance Act, which were designed to help end federal dominance over Native nations in many areas, including education. In the years following these Acts, Native nations have made significant progress in exercising control over their own education by establishing more than seventy-five tribally-operated primary and secondary schools, more than two dozen community colleges and universities, and a stronger presence in higher education through a variety of programs, such as American Indian Studies. Despite this progress, the damage of generations of assimilative educational policies cannot be completely reversed in one or two generations, and so the legacy of these policies lives on.

B. Assimilation through Child Welfare Policy

Education was not the only tool used to assimilate Native American children. For years, Native children were removed from their homes at alarming rates and given new families - white families - either through adoption or foster care. As might be expected, the decision to remove Native children and place them with white families was not made by Native Americans, but by foreign institutions, such as state and federal courts.

The idea that Native children would be better off living with white families seemed to take its strongest form during the Termination Era, when federal policy was directed at assimilating all Native Americans. During this time, the federal government encouraged private organizations, such as religious groups and state agencies, to get involved in the lives of Native American youths.

An example of such an agency was the Indian Adoption Project, which took place in the 1950s at the urging of the federal government. It was created to place Native children with non-Native parents so they would receive better care. Before it ceased operating, the Indian Adoption Project had placed nearly 400 Native children with white parents. With regards to religious groups, the practices varied greatly between denominations, but at least one denomination displaced more than 5,000 Native children per year in the years preceding the passage of the Indian Child Welfare Act of 1978. Contemporaneous with these types of projects, the BIA began substantially involving the states in Native child welfare decisions by referring the majority of their cases to state agencies and courts. Thus, for the first time in history, state welfare agencies and courts were interacting with significant numbers of Native American children.

Involving states in Native child welfare decisions created jurisprudence that fundamentally misunderstood Native culture and ultimately tried to alter and assimilate it. State courts took it upon themselves to define proper child-rearing techniques and when Native parents did not follow their ideals for child rearing, they removed Native children from the care of their parents. Teachers and social service workers, who were often responsible for initiating these types of cases, frequently agreed with the court's take on proper child-rearing techniques. The problem with this practice was its assumption that there was only one proper method of parenting children. Simply put, it failed to take into account Native concepts of child rearing.

For instance, courts typically believed that only the mother and father of a child constituted a “family” that could properly raise a child. Thus, if the child was not predominantly in the care of these two parents, courts would find neglect or endangerment and remove the child from the home. Although Native communities' parenting techniques vary greatly, their conceptions of family tend to be broader and more inclusive than those associated with the Anglo-nuclear family. Often, Native families are comprised of a “large network of relationships” that includes a “multi-generational complex of people and clan and kinship Thus, a child may literally have dozens or hundreds of relatives who “are counted as close, responsible members of the Courts rarely recognized this concept of family to the detriment of Native children.

The problems associated with state social services and courts handling child welfare cases go beyond mere misunderstanding of Native child-rearing techniques. There is evidence of procedural biases that contributed to Native children displacements. For example, there were due process concerns related to lack of notice to tribal parents, an inability to claim a defense to the court action, and the use of coercion to get Native parents to waive their rights with respect to their children. Additionally, the law was unevenly applied to Native Americans as compared to other races, especially in cases that involved alcohol abuse.

The result of the federal government's implicit - and sometimes explicit - approval of these child welfare policies was the removal and subsequent assimilation of Native children at astounding rates. Conservative estimates indicate that during the 1960s and 1970s, approximately one out of every three Native youth were removed from their homes. The overwhelming majority of these removals resulted in placements outside the Native community, with substantial numbers of children being completely removed from the state in which they lived. The rates of placement outside the home differed from state-to-state, but invariably a Native child was far more likely to have been removed from his or her home than a white child. In some states, the rates for Native American removals were nearly twenty times higher than those of white children. Furthermore, although white adoptions of Native children were commonplace in many states, the reverse situation - where a white child was placed with another race - was virtually nonexistent.

Fortunately, in 1978 Congress passed the Indian Child Welfare Act (“ICWA”) in an attempt to correct the serious problems surrounding Natives in the child welfare system. Congress noted the high rates of child displacement and realized that the long-term survival of Native American peoples and cultures was put in great jeopardy when Native children were raised by non-Natives and denied access to Native culture. Moreover, they recognized that a fundamental aspect of Native autonomy is the ability to participate in child custody proceedings.

ICWA gives Native nations exclusive jurisdiction over child custody cases when the child is residing or domiciled on the reservation. The Act also instructed state courts to transfer any Native child custody cases to tribal courts upon request of the parents or the tribe, unless there was good cause not to. Finally, ICWA laid out a hierarchy of people with whom a Native child should be placed in the event that the child must be removed from the home of his or her parents. The hierarchy in the Act is designed to keep Native children with their extended family when possible, and within the Native nation if there is no suitable extended family available.

The ICWA was passed to remedy an existing problem. Although its impact has been impeded by some court systems, it has accomplished some of its goals. The rate of removal for Native American children from their families has decreased significantly. Unfortunately, the number of Native American children removed from their homes continues to be disproportionately higher than for non-Indian families, and by some measures, as many as 20% of Native children are still being placed outside of their nations. Additionally, the effects of Native American adoptions that occurred before ICWA continue to be felt and have had a lasting impact for many Native nations.

C. Assimilation Through Criminal Justice Policy

The criminal justice system is a powerful assimilative mechanism because criminal laws (and the police and courts that enforce them) define what behavior is and is not acceptable within a community. The criminal justice system is both a mechanism of norm creation and norm reinforcement. When an outside culture controls the criminal justice system of another society, the outside culture can define and promote its own norms within the other society. This is what the United States has done to Native nations for more than a century.

While all Native Americans are affected when the federal government uses the criminal justice system to create, impose and reinforce norms, Native youth are particularly vulnerable. The criminal justice system routinely exposes Native juveniles to foreign courts, and often acts to separate them from their families, cultures, and nations. Native youths frequently end up in state or federal systems. Once in those foreign systems they are treated more harshly than their non-Native counterparts.

Under the current jurisdictional scheme, Native juveniles often fall under the control of the state. For instance, if a youth commits a delinquent act outside of Indian Country, Native nations automatically lack jurisdiction, regardless of where the Native juvenile is domiciled. In such cases, it is the state that regularly has jurisdiction. In such cases Native youths are subject to state law and the state juvenile justice system.

Similarly, the majority of Alaskan Native juveniles are subject to state jurisdiction under the reasoning articulated by the Supreme Court in Alaska v. Native Village of Venetie Tribal When Native nations lack the judicial, financial or treatment resources to properly handle juvenile delinquents, they often transfer jurisdiction to the state and contract for use of the state's judicial and treatment systems. For some Native nations, the alternative to turning their juvenile delinquents over to the state is to merely return them to their homes without any formal processing or treatment whatsoever.

Native juveniles can also fall under federal jurisdiction. For instance, federal courts have jurisdiction over any crime committed in Indian Country that is listed in the Major Crimes Act. Federal courts also have jurisdiction over crimes that fall under the Indian Country Crimes Act, or the Assimilative Crimes Act. These two Acts apply only when a Native individual commits a crime against a non-Native in Indian Country, and even in those circumstances, their applicability is limited. Finally, the Federal Juvenile Delinquency Act (“FJDA”) allows federal courts to assert jurisdiction over Native juveniles who violate any federal law prior to their “eighteenth birthday[,] which would have been a crime if committed by an with Attorney General certification. Certification requires the Attorney General, after investigation, to certify to a federal district court that in that particular case: state courts have no jurisdiction or refuse to assume jurisdiction; or the state does not have adequate services for the juvenile in question; or there is a substantial federal interest in adjudicating the juvenile in the federal system. In such cases, the Attorney General's certification need not address the issue of tribal jurisdiction or tribal juvenile services.

There are therefore multiple ways that a Native juvenile might be pulled into the state or federal system. When this happens, Native nations are unable to apply their “traditions and customary rehabilitative” processes to their own children. Instead, foreign procedures and values are imposed upon Native youth. To complicate matters further, once a juvenile enters an outside system, he or she might end up being placed in an off-reservation residential treatment facility, separated from his or her family and community. This occurs frequently in federal juvenile proceedings because the federal government neither owns nor operates any juvenile detention facilities. Thus, “American Indian youth are often shipped to public and private facilities hundreds of miles from their In such cases Native nations have no say in the decisions that greatly affect their own youths.

Tragically, there is strong evidence that when outside governments make decisions about juvenile delinquents, they do not treat all races equally. Native Americans are disproportionately represented at all levels of the juvenile justice system, indicating systemic biases against Native children. For instance, although Native youth make up approximately 1.4% of the juvenile population, they are arrested at rates significantly higher. If a juvenile continues through the system after arrest, there are two primary options available: diversion or detention (which generally leads to formal At this stage, the more lenient option of diversion occurs 10% less often for Native Americans than it does for whites, and detention occurs 10% more often for Native Americans than whites. Native juveniles are adjudicated at a higher rate than any other race, and after adjudication, Native youth are put on probation at a lesser rate than any other race. Rather, they are more likely to receive the most punitive sanction - out-of-home placement. Native Americans make up 2.3% of all out-of-home placements and they are at least 50% more likely than whites to be removed from their home and placed in a residential treatment facility.

In addition to adjudication, in some circumstances juveniles can be entirely removed from the juvenile justice system and tried as adults. Removing a minor from a juvenile court is very serious as it exposes him or her to possible prison time. Of all races, Native Americans are the most likely to be removed to adult court, and they are 50% more likely to be tried as an adult than their white counterparts. Once a Native youth is tried as an adult, he or she is almost twice as likely as a white youth to end up in a state adult prison. In some states, the rate of Native juvenile imprisonment is more than fifteen times that of whites.

Native youths do not fare any better when removed and treated as adults in federal court. Between 1994 and 2001, more than 60% of all incarcerated youth in the federal system were Native. Some of this over-representation can be explained by the fact that the federal courts have jurisdiction over certain crimes when they occur in Indian Country, but social factors also contribute to the over-representation. Native over-representation in the federal system coupled with harsh federal sentences reveals that Native juveniles are being treated differently, and more severely, due to their status as Indians.

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As indicated, federal policies have routinely separated Native youths from their families, and then allowed non-Native institutions such as schools, non-Native families, juvenile placement facilities, or federal prisons to impose outside norms on those same youth. Generally, these norms have nothing to do with the youth's Native culture and understanding of the world. They obviously harm Native nations' sovereignty and right to preserve their own peoples and cultures; but they also have very real impacts on the families who are victims of these policies.

Humans are social beings by nature. In order to develop properly, young children must have opportunities to establish meaningful attachments to their parents or caregivers. Many Native communities use extended family and kinship relatives to raise a child, ensuring that such attachments occur because even if a “child's parents are not emotionally or physically available, these other extended family or community members may become critical ‘objects of attachment’ for the Research indicates that brain development is hampered without these attachment opportunities. Additionally, a child who has no critical object of attachment is more likely to lack essential social skills (including the ability to feel empathy and remorse), lack the ability to understand his or her own feelings, lack the ability to adjust to change, act defensively, and have a lower IQ than other children.

It is also the case that the strict routines of certain institutions - such as boarding schools - serve to increase a child's dependence on outside decision-makers, thus stunting creativity and independence. When federal policies separate a child from his or her caregiver, the government is traumatizing that child in a way that has the potential to affect the child's physical and emotional development in irreversible ways. Even when separation occurs at older ages - as is sometimes the case with boarding schools or the juvenile justice system - there is evidence that this separation still produces “severe distress” that can interfere with the youth's “physical, mental, and social growth and

Moreover, when children are separated from their families and are raised by outside institutions, they lack the experience of being parented. This, in turn, means that when these separated Native youth become parents themselves, they have no model to draw from, and no amount of formal training can adequately compensate for this deficiency. The tragic nature of this situation is perhaps best-stated by the late Native American psychologist Carolyn Attneave, who writes:

I recall vividly how often each year worried sets of parents would come to the clinic begging for help in securing placement in a boarding school for their eight- or nine-year old child. This puzzled me, and it soon became clear that although it was heartbreaking for them to part with their child, they knew of nothing else to do. Neither they nor their own parents had ever known life in a family from the age they first entered school. The parents had no memories and no patterns to follow in rearing children except for the regimentation of mass sleeping and impersonal schedules that they had known. How to raise children at home had become a mystery.

The act of imposing and reinforcing foreign norms on children who have been separated from their families is just as harmful as the act of separation itself. When Native children are separated from their community, they lose the opportunity to learn about their own culture and heritage. This loss is worsened by the fact that these same children may be learning values that conflict with those of their Native communities, or they may be taught to devalue their own culture altogether. These youth are often reminded that they neither fit in with majoritarian society, nor with their Native communities. This results in feelings of alienation, invisibility, and loss of self-esteem and self-identity. Although difficult to quantify at times, the internal conflict and poor self-image often associated with Native youth who have been raised with conflicting norms may result in serious social problems, including increased unemployment, substance abuse, and suicide.

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This article sought to expose three important aspects of juvenile delinquency in Indian Country. First, it brought into focus a picture of life for Native American juveniles by examining available statistical data. The picture is bleak - Native youth were (and still are) disadvantaged compared to the general population in a wide range of aspects related to quality of life. Second, a partial explanation was offered for the obstacles facing Native youth. Specifically, for more than 200 years, state and federal policies towards Native American youth have been assimilative, particularly in the areas of education, child welfare, and juvenile justice. The effects of these assimilative policies have been devastating.

Although the legacy of assimilation lives on, the third goal of this article was to convey hope. Native nations are beginning to reverse the trends put in place centuries ago by outside governments. The Nation Building Model provides guiding principles that Native nations can utilize to reclaim control over the issues affecting their children. Some Native nations are already putting this model into effect. With respect to Native youth, some Native nations have targeted education, child welfare, and juvenile justice policies in their communities.

Perhaps the most valuable lesson of this article is that in the quest to improve the lives of Native juveniles, one size does not fit all. There is no single solution that will reverse the centuries of assimilative practices against Native children. While the Nation Building Model provides principles that can be applied to a variety of situations, it does not provide a prototypical education, child welfare, or juvenile justice system that can simply be replicated throughout Indian Country. Rather, the Nation Building Model encourages Native nations to meaningfully reflect on the needs of their community and then incorporate its cultural values into each institution created. Simply put, the key to success is the exercise of self-determination: Native nations must make their own decisions about the way they want to live - including the way they want to handle education, child welfare issues, and juvenile justice. If Native nations are willing to reclaim control and design programs that meet their own unique community needs, then the effects of assimilative policies will start to fade and the difference will be seen in the lives of the children and, in turn, throughout the entire nation.



. S.J.D., University of Arizona, 2009; LL.M., University of Arizona, 2006; J.D., University of Iowa, 2005