The following are the remarks of Associate Attorney General Tony West as delivered at the National Indian Child Welfare Association’s 32nd annual Protecting Our Children Conference in Ft. Lauderdale, Florida.
Thank you, Theodore and Alex, for that kind introduction and for inviting me to join you today at this conference. It is wonderful to be here with so many friends, colleagues, and supporters. And it is an honor to share the stage this morning with two great partners, Assistant Secretary [Kevin] Washburn and Associate Commissioner [JooYeun] Chang.
I would especially like to thank NICWA and its members for the work that you do – day in and day out – to strengthen Indian tribes, to support Indian families, and to protect Indian children in both state child-welfare and private-adoption systems throughout our nation.
And I think it’s fitting that what brings us together this morning, this week – from communities across this country – is our commitment to children, particularly Native children. I think it was the French philosopher Camus who wrote about this being a world in which children suffer, but maybe, through our actions, we can lessen the number of suffering children.
Indeed, what brings us to Ft. Lauderdale is that promise we make to all of our children: that their safety and well-being is our highest priority; that they are sacred beings, gifts from the Creator to be cherished, cared for, and protected.
It was that promise that, nearly 40 years ago, led Congress to hold a series of hearings that lifted the curtain and shed light on abusive child-welfare practices that were separating Native children from their families at staggering rates; uprooting them from their tribes and their culture. Roughly one of every three or four Indian children, according to data presented at those hearings, had been taken from their birth families and placed with adoptive families, in foster care, or in institutions that had little or no connection to the child’s tribe.
And in the face of that overwhelming evidence, a bipartisan Congress acted and passed the Indian Child Welfare Act of 1978.
And in the four decades since, as everyone here knows, ICWA has had a dramatic impact. Families, tribes, social workers, and Indian foster and adoptive parents have invoked ICWA’s core protections to stem the most flagrant abuses.
Tribes no longer face the prospect that a quarter to a third of their children will simply disappear, shipped off to homes halfway across the country. Today, in many places, tribes and states have developed productive working partnerships to implement ICWA – partnerships that ensure that Indian families and cultures are treated with the respect they deserve.
And while it is right for us to recognize the landmark achievement that is ICWA, we also know that there is much work left to do. There is more work to do because, in some states, Native children are still removed from their families and tribes at disproportionately high rates.
There’s more work to do because nationwide Indian children are still two to three times as likely as non-Indian children to end up in foster care; in some states the numbers are even larger.
There’s more work to do because every time an Indian child is removed in violation of ICWA, it can mean a loss of all connection with family, with tribe, with culture. And with that loss, studies show, comes an increased risk for mental health challenges, homelessness in later life, and, tragically, suicide.
So, as far as we have come since ICWA became law in 1978, we have farther still to go.
You all know this is true from both professional and personal experience. And I want you to know that President [Barack] Obama and Attorney General Eric Holder share your commitment to improving the welfare of Indian children and are committed to working with you to help achieve that goal. Although ICWA speaks primarily to the responsibilities and roles of the states and the tribes, we believe there’s a constructive part for the federal government to play.
That’s why the White House has directed the Departments of the Interior, Health and Human Services, and Justice to engage in an unprecedented collaboration to help ensure that ICWA is properly implemented. I believe we will hear more about this effort from Assistant Secretary of the Interior Washburn in a few minutes.
For our part at the Justice Department, our main ICWA contributions have focused on precedent-setting litigation that can affect ICWA’s reach and force. One of ICWA’s most important provisions is its recognition that Indian tribes, as sovereigns, have presumptive jurisdiction over Indian child-custody proceedings. And over the years we have worked hard to help protect this tribal jurisdiction by participating in federal and state court litigation as an amicus curiae, or “friend of the court.”
In Alaska, for example, we’ve participated in a line of cases over the last 20 years to ensure that Alaska tribes have jurisdiction over child-custody disputes. Starting with the landmark John v. Baker case, we’ve filed multiple amicus briefs in the Alaska and U.S. Supreme Courts, successfully arguing that even tribes that lack “Indian country” retain jurisdiction to address child-custody disputes.
Of course, we’ve not always prevailed. Last June’s U.S. Supreme Court decision in Adoptive Couple v. Baby Girl, which narrowly interpreted ICWA and terminated the parental rights of a Cherokee father in connection with his daughter, was decided over our arguments in support of the father.
But even when we don’t prevail, our legal arguments can have a major impact on the ultimate decision. You’ll recall that in Baby Girl, one of the arguments advanced by the adoptive couple was, essentially, that ICWA was unconstitutional – that it “upset the federal-state balance,” suggesting that Congress was prohibited from overriding state child-custody law when an Indian child was involved.
We countered that applying ICWA in that case raised no constitutional concerns, as Congress has plenary authority to protect Indian children from being improperly separated from Indian communities. And on this point, we were successful: even though we lost the ultimate issue and the High Court ruled against the Cherokee father, the Court did not rely on the adoptive couple’s constitutional argument and did not rule that ICWA was unconstitutional.
Notwithstanding setbacks like the Baby Girl decision, we will continue to stand up for ICWA because, as we said in the Supreme Court, it’s “a classic implementation of Congress’s plenary [trust] responsibility … for Indians.” You see, for us, standing up for ICWA means standing strong for tribal sovereignty. “Nothing could be more at the core of tribal self-determination and tribal survival,” we said during oral argument in the Baby Girl case, “than … [determining] tribal membership and … [caring] about what happens to Indian children.”
This, of course, is completely consistent with the Administration’s steadfast efforts to advance tribal sovereignty on a whole host of fronts. It was our Nations’ Founding Fathers, the framers of our Constitution, who expressly acknowledged tribal sovereignty when they empowered Congress to regulate commerce not only “among the several States,” but also “with the Indian Tribes.”
It’s a principle that was succinctly summed up by President Obama in 2009 when he observed: “Tribal nations do better when they make their own decisions.”
And for those of us privileged to serve in the Obama Administration, what does standing up for tribal sovereignty mean?
It means not only filing briefs in Indian-law cases that seek to preserve the victories tribes have won in the lower courts; but also seeking to change the law, where necessary.
Perhaps the best example of that is last year’s fight to reauthorize the Violence Against Women Act, or VAWA. As you know, the same year Congress helped advance tribal sovereignty by passing ICWA, the Supreme Court, in the Oliphant case, held that tribes lacked criminal jurisdiction over non-Indians unless Congress said otherwise. But for 35 years, Congress remained silent.
So even violent crimes committed by a non-Indian husband against his Indian wife – in the presence of their Indian children, in their home on an Indian reservation – he could not be prosecuted by the tribe. So violent crimes went unprosecuted and unpunished, and violence against Native women escalated.
So in 2011, the Justice Department drafted federal legislation to fix this problem by restoring tribes’ criminal jurisdiction. Last winter, that legislation was enacted by Congress and signed into law by President Obama. Today, the Justice Department and three Indian tribes – the Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington, and the Umatilla Tribes of Oregon – are all actively implementing the first pilot projects under VAWA 2013.
And while VAWA 2013 is the best example of our trying to change the law’s balance in favor of tribal sovereignty, it’s not the only one. When the Supreme Court’s decision in the Carcieri case made it harder for the Secretary of the Interior to take land into trust for some tribes, we stood with the tribes and repeatedly pushed Congress to pass the Carcieri fix, so that tribes could put their land into federal trust regardless of when they were recognized.
In addition, in response to Carcieri, the Interior Department has analyzed what tribes were under federal jurisdiction in 1934, which in turn has enabled Interior to make positive land-into-trust decisions for many tribes. And the Justice Department is vigorously defending those decisions when they are challenged in court.
Standing up for tribal sovereignty also means extending the benefits of that government-to-government relationship to every legitimate Native American group in the United States. That’s why the Interior Department is currently revising its federal acknowledgment regulations, so that tribes that have been terminated or otherwise denied their proper status as sovereign nations can reestablish a government-to-government relationship with the United States.
Standing up for tribal sovereignty means supporting the U.N. Declaration on the Rights of Indigenous Peoples, as this Administration does, declaring that all “[i]ndigenous peoples have the right to self-determination … [and to] freely determine their political status.”
And it means not overlooking one of our country’s largest indigenous communities: the Native Hawaiian people. In 2010, Attorney General Holder and then-Secretary of the Interior [Kenneth] Salazar took the historic step of expressing this Administration’s strong support for a proposal that would lead to reestablishing and maintaining a government-to-government relationship with the Native Hawaiian community.
Tribal leaders in the continental United States have long proclaimed that Native Hawaiians deserve the same inherent rights to local self-government, self-determination, and economic self-sufficiency that other Native Americans enjoy. And today we have a federal government willing to stand beside them and defend those core principles.
So standing up for tribal sovereignty means moving forward on all of these fronts, as well as many others, like continued support to improve public safety in tribal communities – almost 1,000 DOJ grant awards to tribes totaling nearly $400 million over the last four years.
Or working to identify ways to reduce the violence experienced by too many of our Native children, as our Task Force on American Indian/Alaska Native Children Exposed to Violence is doing through convenings and listening sessions throughout the country, the next one occurring later this week here in Ft. Lauderdale.
Or improving the safety of tribal communities by more U.S. Attorney prosecutions of cases in Indian country – up by more than 50 percent in the last four years.
These are pragmatic, meaningful and significant measures in support of tribal sovereignty, and they are making a difference every day.
Let me close by saying this: one of the great privileges of my office as the nation’s Associate Attorney General has been the opportunity to delve into issues of tribal public safety and tribal sovereignty. And over the last five years, my work has taken me to Indian country more than a half-dozen times.
And for me, those visits are a reminder of the rich legacy that First Americans have bestowed upon this country, and that we are a stronger America because of that legacy.
They remind me of the important trust relationship between the United States and tribal nations, and that the struggle for tribal sovereignty and self-determination has too often been waged in the face of disruption and devastation caused by assimilation and termination policies pursued in the not-so-distant past.
They remind me of the Code Talkers, the Cold War Warriors, and the other Native American men and women who proudly wore the uniform and whose continued service today helps secure the freedoms we enjoy here, at this moment and in this place; and that, as important as is our shared history, so too is our common destiny: a future that is left in our hands to shape.
A future that can be defined by sovereignty and self-determination; by resilience and sustainability and economic opportunity; a future unclouded by violence, in which the Seventh Generation is healthy, happy and strong.
That is the vision of the future that unites all of us in this room. It is our charge and our challenge; our collective mission. And for all that you do to make real this promise to our children, know that I salute you, proudly stand with you, and will work alongside you, today and in all the days ahead.
Thank you very much.