A Tribal Question
IT WAS May 2005, and Max was almost 6 years old. His front teeth were rotten, and his mother did not understand how to administer his asthma medicine. Max's sister, Nicole, suffered from dissociative disorder and was struggling with nightmares and memories of fights between her parents. Though she was more than 3 years old, she had not been potty trained.
The children's parents had chronic drug and alcohol problems; on at least one occasion, the mother called police because her husband had threatened to kill her. That May, a Montgomery County Circuit Court judge ordered the children placed temporarily in the home of an aunt, where subsequently they seemed to thrive, according to testimony from social workers and therapists. The aunt would later be awarded custody.
But a novel ruling this summer from the Maryland Court of Special Appeals threatens to throw Max and Nicole's lives into turmoil again simply because they are Native American. Although the children's biological father is non-Indian, Max and Nicole's mother is part Yankton Sioux, making the children subject to the Indian Child Welfare Act (ICWA). The 1978 federal law seeks to keep Native American families intact; it applies to Max and Nicole even though they have not had contact with the Yankton Sioux Tribe in South Dakota, and their mother has lived in a non-Indian home since she was a few months old.
The ICWA makes it more difficult for courts to remove children from a dysfunctional Native American home than from one of any other race or ethnicity. Government agencies, for example, must prove that "active efforts" -- rather than the more typical "reasonable efforts" -- were made to rehabilitate drug-addled or psychologically impaired Indian parents before taking away their children. If an agency is unable to help the parents, the law strongly urges a search for Native American guardians. Max and Nicole's aunt -- a relative on their father's side -- is not Native American. A lawyer for the tribe argued that the Circuit Court had not made the required "active efforts."
The Court of Special Appeals, in the first case of its kind in Maryland, concluded that although the Montgomery County Department of Health and Human Services repeatedly referred both parents to drug treatment and other programs, the county had to do more. For example, the court mused, perhaps the county should have escorted the parents to counseling sessions. The case is now back in Montgomery County, where on Oct. 30 a circuit judge will begin to reconsider what "active efforts" the county should undertake to try to help the mother.
The case could drag on for another year or so. In the meantime, the children should be allowed to stay with their aunt. And unless the mother makes a remarkable recovery, the aunt should be given permanent custody of Max and Nicole.
It is one of the great shames of this country that Native Americans were treated so horribly by outsiders intent on stealing their land, decimating their people and snuffing out their culture. It would be a modern tragedy if Native American children were deprived of safe and loving homes by the very law meant to protect them.