A demonstrator outside the Goldwater Institute in Phoenix. Photo Credit: @DefendICWA
On Thursday, October 4, a U.S. District Court for the Northern District of Texas declared the Indian Child Welfare Act unconstitutional claiming it is a “race-based statute.” The ruling ignores hundreds of years of federal Indian law recognizing Native American tribes as nations. Judge Reed O’Connor claimed. Indigenous nations are not governments at all and not to possess national interests in children born to their tribal members. Congress passed the law in 1978 in response to a study finding 25-35 percent of Native children were taken from their homes and over 80 percent placed with non-Native families. This high rate of removal falls under the United Nations’ Convention on the Prevention and Punishment of Genocide, Section II which defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group … (e) Forcibly transferring children of the group to another group.”
In a joint statement, leaders of the four tribes named in the suit restated their commitment to protecting children of their respective nations saying in part, “If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families.”
This ruling represents the culmination of years of work by the Goldwater Institute, a conservative think tank. By using the 14th Amendment’s “equal protection under the law” clause, the institute finally obtained a ruling that alleges the definition of “Indian” is illegal because it is race-based. Native attorneys I have interviewed believe the organization’s goal is to create a circuit court split and take the case to the Supreme Court. There, a very conservative court could declare unconstitutional the protections of ICWA and, by extension, make tribes, themselves, illegal. Thus, this ruling has serious implications for both the unity of Native families and the sovereignty of their respective nations. Ironically, “Indians” are not named in the 14th Amendment because when it was passed in 1868, Native Americans were not viewed as citizens of the United States by Congress, but as citizens of their Indigenous nations and thus, did not require an exemption under the amendment. Native Americans were not granted U.S. citizenship until 1924.
How ICWA does and does not work at the state court level illuminates how ignorance of the law puts Native American parents in danger of losing their children every year. Colorado is unique in that it has a state-level ICWA law on the books, two dedicated ICWA courts, and a dedicated en banc court of appeals panel for ICWA review. However, there is still a great deal of education that needs to occur. It should be noted most judges and attorneys are not required to learn Indian Federal Law in law school or to pass the bar and therefore do not know it. Even Justice Sonia Sotomayor admitted she had no familiarity with Indian Federal Law before she arrived at the Supreme Court. Allegedly, the late Justice Scalia bragged about his ignorance of it to Native lawyers and claimed to be “just making it up” as he went along.
And the results of this ignorance can be devastating to Native families. In 2011, NPR in a series about Native foster care in South Dakota found 700 Native children, a disproportionate number for their percentage of the population were being placed in foster care every year. Reporters also found that ICWA, which gives preference to placement with relatives or their tribe, was not being followed.
“Cousins are disappearing; family members are disappearing.” Peter Lengkeek, a Crow Creek Tribal Council member, told NPR 33 years after the passage of ICWA. “It’s kidnapping. That’s how we see it.”
I hope more states do more to implement ICWA fully and to understand what sovereignty means to Indigenous nations.
In 2015, I had the honor of interviewing Oren Lyons, Faithkeeper of the Turtle Clan of the Onondaga Nation for Earth Island Journal about his work at the United Nations and role in the creation of the UN Declaration on the Rights of Indigenous Peoples and something he told me remained on my mind when I had the opportunity to go the UN for the first time.
“In the UN, you have a number of nations and everyone has their own agenda. And part of that agenda is land and indigenous people are a problem because we have prior rights to the land. We thought we were going to a place where justice was prevailing. I call it the ‘Land of Oz’. We went to see the wizard and we were very much like Dorothy thinking that there was truth and equity and justice and we ran into the very same people as we had come from.”
Even on this, the 10th anniversary of the UN Declaration on the Rights of Indigenous Peoples, a landmark document representing the work of leaders like Oren Lyons since the 1970’s to articulate the international status of Indigenous peoples and to protect our communities and cultures, I went to the UN wondering if this was indeed the land Oz and me, Dorothy, or was this really a place where real progress was possible to protect our people?
My first day at the meetings I spoke via phone to Doug George, Mohawk Nation, who had attended the Permanent Forum on Indigenous Issues (PFII) the week before I was there and he told me how shocked he was that testimony given by Indigenous peoples that their attempts to assert their rights under UNDRIP, had led to retaliation and violence against their communities. It was, apparently, not an entirely foreseen outcome by those like Mr. George, who had participated in creating the declaration.
Mr. Leonard Gorman Exec. Dir. of the Navajo Nation Human Rights Commission
However, the testimony that struck me was that of a representative of my own nation, the Navajo Nation, Mr. Leonard Gorman, executive director of the Navajo Nation Human Rights Commission who noted:
“As a representative from the Navajo Nation, I am unable to participate in this PFII session under the credentials of the Navajo Nation. I'm here with an identification card says NGO and my name is on it. I'm hopeful that sometime in the near future I would also hold here a card that says Navajo Nation under its own credentials.“
Being discussed was the zero draft resolution of the General Assembly “On Enabling the Participation of Indigenous Peoples’ Representatives and Institutions in Meetings of Relevant United Nations Bodies on Issues Affecting Them.” This resolution once finalized and passed would finally allow a representative from an Indigenous Nation like Mr. Gorman to finally attend meetings at the UN credentialed by the Navajo Nation and not by a Non-Governmental Organization.
I was stunned that the representatives of my nation would not be allowed to attend as representatives of the Navajo Nation. It made me wonder how far we had come? I remembered how my husband’s grandfather was denied entry to the first UN meeting in San Francisco in 1945. He was the chief of the Mohawk Bear Clan of the Iroquois Nation. He and other Iroquois chiefs had traveled from Six Nations in Ontario, Canada on their own dime to attend this important international meeting. After they were denied entry and told there was no “Iroquois Nation” on the list they met out in front of the Fairmont Hotel and discussed what to do. They decided to try once again since they had come so far and the second time they were admitted. However, the man had thought they were from the Iraqi Nation and so the elected representatives of the Iroquois Confederacy, once one of the most powerful on the Eastern seaboard, entered the UN by mistake.
Later, I heard Frank Ettawageshik, a former tribal chairman of Little Traverse Bay Bands of Odawa Indians attending as representative of the National Congress of American Indians and the United Tribes Michigan speak to the same issue:
Frank Ettawageshik, former tribal chairman Little Traverse Bay Bands of Odawa Indians
“For 14 years I served as the elected head of state for my nation and that's the Little Traverse Bay Bands of Odawa Indians. During this time I did not attend United Nations meetings because as my colleague Mr. Gorman from the Navajo Nation spoke, I did not want to be here as the elected head of state with an NGO certification and I felt that that was not proper protocol and I couldn't attend. It was only after I left office as an elected official that I engaged strongly in this process because I believe that we should work to try to change that.
My nation has engaged internationally for thousands of years. We have treaties with other Indigenous nations—both in the United States, all across North America and around the world—we have treaties with European governments and with the United States. These treaties remain in force today. It would, therefore, be completely unacceptable for our nation to participate in a process that would not provide the right for participation as an individual Indigenous nation (emphasis mine).”
I had no idea that our nations had so little representation at the UN. And make no mistake about it, our “tribes” are nations. The U.S. Senate does not ratify treaties with anyone but sovereign nations and under international law, you cannot treaty away your sovereignty. We still exist, albeit militarily oppressed by the most powerful country in the world. We are nations and the UN should recognize that as does the United States by the act of treaty-ing with us.
I was particularly appalled when Mr. Ettawageshik mentioned that even Chairman Archambault of the Standing Rock Sioux Tribe, in the midst of the Dakota Access Pipeline standoff on the Great Sioux Nation’s unceded treaty land almost did not get to speak when he came to the UN regarding this international dispute. He had to wait in line with NGO representatives and would not have gotten to speak at all during this conflict which garnered international outrage if 6 speakers ahead of him had not given up their spots for him. I was stunned.
By ignoring and refusing to acknowledge our Native Nations, even those with treaties with the United States, the UN participates in the denigration of our nations. Even the zero draft does not guarantee access to the General Assembly or allow more than a potential observer status that does not recognize our nations in any meaningful way as nations.
Ta'Kaiya Blaney (Tla A'min Nation) on right with Rachel Marco-Havens
“Agrees that the selection of Indigenous Peoples’ representative institutions to attend and participate in the United Nations in accordance with the principles and criteria set herein does not imply recognition of those institutions under international and domestic law or policy for any purpose other than participation in meetings relevant United Nations bodies on issues affecting them.”
I wonder if the UN can be a body that recognizes Indigenous Peoples’ in any meaningful way when it cannot recognize our Native Nations which clearly have been accorded nationhood recognition through international legal documents like our treaties with the United States.
What gave me hope, however, was hearing the voices of the youth. From fellow Wittenberg Center attendee Ta'Kaiya Blaney (Tla A'min Nation) to Lianna Rice, Inuit from Nunatsiavut, Canada.
Lianna Rice, Inuit from Nunatsiavut, Canada
Rice poignantly reminded the UN PFII chairs about the real price our youth pay for having their identity marginalized and displaced.
She told me in an interview after her testimony, “within my land claims area Nunatsiavut the most at-risk population are young male Inuit between the ages of 16 and 24. They actually experience suicide at a rate 40 times the national average of Canada… I, myself, have attempted suicide a couple of years ago and nine months ago my brother passed by suicide.”
And what is killing our youth? Why do Indigenous youth in the United States and Canada have such greater rates of suicide than other youth in these countries? I believe it is tied to the erasure of their peoples, their nations. The UN could help these youth by recognizing their nations and not by scuttling the issue as they have done since its founding 72 years ago. We can and should do better for the next seven generations to come.
Last night, I spoke at a 350PDX panel on Standing Rock and was asked to summarize what Standing Rock means to me and what my "lessons learned" were. I recalled a statement about Standing Rock made by my friend Joleen Brown (Oglala Lakota), editor of Native Hoop Magazine: "Even after everything they did to us—how they tried to damage us to make us lesser than we were...that we can still make a stand like this? When you see the two cultures facing off, I am so proud. You can clearly see which is the better culture."
I called Standing Rock a pilgrimage and I truly believe this to be true. A pilgrimage of heart and mind and a form of as we Dakota say "of voting with our feet." Everyone who is going there is casting a vote for the kind of society—world, even—they want to see and be a part of.
But it is also about sovereignty. And why does honoring the sovereignty matter? The sovereignty of the Great Sioux Nation or as we call it, the Oceti Sakowin (Seven Council Fires) and of the Standing Rock Sioux Tribe? Beyond the fact that without the sovereignty of our nations, treaties have no validity, diminishing, sidelining and/or co-opting our nation's sovereignty is no small thing.
Sovereignty cannot reside in a cult of personality—it must reside in systems that are accountable and transparent to all the people. The Standing Rock Sioux Tribe has methods of being held accountable (see here) but charismatic personalities do not. See the pictogram (right) for the problems with leadership vested solely in an individual and not an agreed-upon system of checks and balances clearly accountable to the people.
I posted these Facebook posts that explain my take on the maligning of Standing Rock Sioux tribal chairman Dave Archambault II:
Our people were not organized as feudal societies in Europe were with an autocratic leader who enforces his will through violence against his own people. Lakota/Dakota people were organized through specific respect relationships embodied in our kinship system. This was the main government we possessed. Disrespecting, ignoring and sidelining the leadership of elders and respect relatives is simply culturally alien to our culture, it is colonial in nature.
As my great-great aunt, Dakota ethnologist Ella Deloria noted in her 1944 book "Speaking of Indians":
"For the most part, then, everyone had his part to play and played it for the sake of his honor, all kinship duties, obligations, privileges, and honoring being reciprocal. One got as well as gave. Thus kinship had everybody in a fast net of interpersonal responsibility and made everybody like it, because its rewards were pleasant. There were fewer rebels against the system than you might think, since, as I have said, social standing and reputation hinged on it. Only those who kept the rules consistently and glad- good citizens of society, meaning persons of integrity and reliability. And that was practically all the government there was. It was what men lived by."
The use of colonial attitudes in the reemergence of the Oceti Sakowin would signal a very different nation or oyate than what we once were. Fundamentally different—in fact, not Dakota or Lakota, anymore. It would be a nation that would be some product of colonization. A change of this nature to our identity as people would have to be the result of a calm and reasoned discussion and be agreed upon by all the people of the Oceti Sakowin.
Which leads us to another fundamental aspect of Lakota/Dakota culture: consensus. We are not only not led by autocrats or charismatic leadership that makes its own rules, but we are ruled by consensus, a long, difficult but culturally-relevant process. Change either of these and you have a different people—a people who are no longer Lakota or Dakota except in name.
It saddens me that there is such division. Opening my email and I see a daily news brief from Grist and the lead story is about the infighting arising at Standing Rock. Once again, I turn to my great-great aunt's recollections of our kinship system to seek a remedy for this that is grounded in our culture and the strengths that it gave us a people whose leaders (who were a product of this system and utterly accountable to it) are admired and known the world over. Here she explains what she calls "the kinship appeal":
"The kinship appeal was always a compelling force in any situation. If two normally decent acquaintances quarreled, for instance—and of course if they were acquaintances they were social relatives outsiders were deeply concerned over it until it was straightened out. The 'good men' felt it incumbent on them to restore peace and order by appealing to the quarreling ones through kinship. Peace is implied by the very name of the people, Odakota, a state or condition of peace; the 'O' is a locative prefix.
'We Dakotas love peace within our borders. Peacemaking is our heritage. Even as children we settled our little fights through kinship that we might live in Odakota.' And with that, two of the most responsible and influential men would visit the unhappy ones and appeal to them to cool off their hearts for the sake of their relatives who were unhappy over their plight. And they did not go empty-handed. There must always be a token, an outward sign of great inner desire. The peacemakers went prepared to give a gift 'to cool off your heart and to show by it that we your kinsmen value your life far above mere chattel.'
Such an appeal in kinship's name was supreme. It placed the responsibility for his relatives' peace of mind squarely on the troubled man, reminding, him that no Dakota lived unto himself alone; all were bound together in kinship. He might not rightly risk even his very own life needlessly, thereby bringing tears to the eyes of' his relatives especially his sisters and women cousins, to whom he owed the very highest respect and consideration. However slightly he valued himself, he must regard the relatives. And the quarreling men, unable to resist such an appeal, smoked the pipe together and were feasted before the council, and so the breach was healed. Friends, happy over the reconciliation and the restoration of peace, brought them more presents. And it was not in the least the intrinsic value of the gifts that mattered but what they symbolized: that the two were more precious to their relatives than mere things. And thus peace was restored in the camp circle to the relief of all."
Peace everyone. Peace and beauty (Hozho Nahasdlii').
Oceti Sakowin Camp on the Cannonball River north of the Standing Rock Sioux reservation
It’s Cannonball, North Dakota but with the temperature hovering around -25 degrees Fahrenheit with windchill factored in it feels like the planet Hoth in “The Empire Strikes Back.” The whiteness of the landscape and the intense cold brings such comparisons to mind. The NoDAPL camp, which numbered 10,000 in early December before the first blizzard, is a testament to the support the Standing Rock Sioux Tribe enjoys in its fight against the $3.7 billion Dakota Access Pipeline that they say threatens their lands, water, and people.
At the hill north of the Oceti Sakowin (Lakota for the Seven Council Fires) camp, the Morton County Sheriff’s Department had been shining bright lights on the camp every night. It is a constant presence as has been the helicopter that circled the camp for months at all hours. The sound of it reminded everyone at camp those in power could see them, would not stop seeing them. One water protectors (as protesters prefer to be called) told me that he estimated the gas bill for the helicopter cost the state of North Dakota $1,000 per hour. State officials have estimated total costs for this militarized response to the encampment and nonviolent demonstrations at $15 million ($10 million of it borrowed from North Dakota’s state-owned bank). The Standing Rock Sioux Tribe and the elders of the Oceti Sakowin (what the Americans call The Great Sioux Nation) say is a peaceful, prayerful encampment on unceded treaty lands.
In stark contrast, at the foot of the hill where the police shine their lights on the camp is the “Moms Against Meth” camp run by Native American mothers who oppose the spread of meth in their communities. It is a solemn cluster of yurts, as white and serene as the snow that lays all around for miles in every direction.
Just beyond this hill on the night of November 20th, at a small bridge, aptly named Backwater Bridge, thousands watched in horror in real time on Facebook as police sprayed some 400 water protectors for 5 hours straight with water cannons in subfreezing temperatures. Law enforcement fired at close range on unarmed people using rubber bullets, bean bags, pepper spray and concussion grenades against unarmed demonstrators who trapped on the bridge could not easily disperse. More than 300 were injured according to a class action suit brought by the Water Protectors Legal Collective. Those injured that night included 21-year old Sophia Wilansky from Brooklyn, New York, who is undergoing painful surgeries and rehabilitation but may still lose her arm after being directly hit by a concussion grenade, and Vanessa “Sioux Z” Dundon, a 31-year old Navajo activist from Arizona who had a tear gas canister go off in her face and has lost nearly all vision in one eye.
After the Nov. 20 assault, thousands of veterans answered the call to come to Standing Rock on Dec. 5 and nonviolently place themselves between water protectors and police. On Dec. 4, as veterans arrived the U.S. Army Corps of Engineers suddenly announced the DAPL’s easement had been denied, and ordering an environmental impact statement would be completed to determine the course of a new route for the pipeline.
The 18 Dakota/Lakota reservations that remain in North and South Dakota, Minnesota and Nebraska are, in a very real sense, islands left in the storm of colonial expansion that engulfed the Oceti Sakowin in the 19th century. Americans, driven by a semi-religious credo of “Manifest Destiny,” a divine plan that the lands from “sea to shining sea” were meant to be under the domination of the United States. The fallout of this belief is that the nations that were already there and their legal claims to the land, even their very existence as nations with political rights, was ignored and later, clouded. If you look at a map today reservation boundaries are given a secondary status to that of states, when, in fact, tribes, as sovereign nations enjoy a higher political status than states. In the U.S. Fish and Wildlife report for the DAPL permit, reservations are not shown at all. It is a form of political gaslighting.
CEO Kelcy Warren of Energy Transfer Partners owners of the DAPL (ETP has since merged with Sunoco) claimed in an interview with the Wall Street Journal, that the tribe had not voiced its concerns earlier. In response, the Standing Rock Sioux Tribe released audio of the Sept. 2014 meeting which clearly demonstrates the tribe and its leadership firmly told the company that it did not want the pipeline crossing through its unceded treaty territory.
“Honor the treaties” is, to many Americans, a tired, plaintive phrase that Native Americans say simply to make them feel guilty. But what most Americans don’t grasp is treaties are actually international law. The U.S. Senate does not ratify treaties with anyone but sovereign nations. Also, under international law signing a treaty does not extinguish your sovereignty—it’s an act of sovereignty. The fact is the United States has been breaking international law for 150 years and did so with the hope that the Great Sioux Nation would not be around in the future to hold the federal government accountable. But what has happened, and that what Standing Rock represents, is with a growing population and a greater sense of political identity as a nation we are witnessing in the 21st century, the political re-emergence of the Oceti Sakowin.
Compare the level of violent, military-style reprisal by the police on water protectors at Standing Rock” to the lack of it faced by NoDAPL demonstrators in Iowa (who are mostly white U.S. citizens). Or even to how the Bundy family were treated when, armed to the teeth, they took over public lands in Nevada (in 2014) and in Oregon (in 2016). The violence can be seen as a reaction to the tribe’s mild assertion of its rights to its unceded territory (the tribe has only been demanding meaningful consultation on the pipeline) and the military force holding the land of the Oceti Sakowin in violation of international law becomes visible.
These unceded territories are now counties (including Morton County) of North and South Dakota. This includes the Black Hills where Mount Rushmore is carved into one of our sacred mountains. The faces of four U.S. presidents is often used as a symbol of America, itself.
Walking down “Flag Road” the wind whipping and the hundreds of rainbow-colored tribal flags wave and twist on their PVC pipe flag poles, I am struck, not for the first time, how this is not something done alone by the people of Standing Rock or a few of their allies. These flags are backed up by tribal resolutions. Even planted by heads of state like the Navajo Nation president, Russell Begaye who with his Vice President Nez and dug the hole to plant the Navajo flag representing a Native Nation of 350,000 people the size of Ireland. He wielded his shovel in a black suit and Begaye and Nez could have been mistaken for Asian businessmen except for the silver and turquoise the two men were wearing. Dakota means allies, in both a friendly and in a political sense. That what Flag Road means. Real political support and alliances. The hoop of the Dakota grows in this century.
The sound of construction goes on in camp, a builder from Vermont leading a crew to build a meetinghouse, there is the sharp chop of an ax on wood, and murmurs punctuated by singers and a drum at a community meeting where the air is so cold every breath is visible.
In a warm felt-lined yurt, I spoke to camp headsman Lewis Grassrope (Wicahpi Ksapa Peji Wikan). He and about 200 others will remain as they say until “the Horn comes down” and their elders tell them to leave. The Horn is a traditional encampment of tipis in the shape of a horn representing the seven council fires and pointed at the enemy in defiance. There, the fire still burns.
Headsman Lewis Grassrope and Ike Weston
“Well, when this movement first started it started on prayer and you know through ceremony,” Grassrope explains. “The wakening of our spirits...to knowing that we need to rethink our societies and rethink the way that we look at life and restore the old values that our ancestors carried so we actually become true human beings (Ikce Wicasa).”
When I saw “The Empire Strikes Back” as a kid and saw Han cutting up the tauntaun to shelter Luke in the warm carcass, I thought of the Dakota stories I heard as a child where a person would take shelter from the deathly cold of a Great Plains winter in the carcass of a buffalo. Our stories differed, however, in that the buffalo would come back to life with the man or woman still stuck inside. As a child, I would pester my dad with questions like, how could they breathe? Today, as an adult, my perspective has changed and I long to be gently swinging to the buffalo’s gait, to be part of such a powerful creature that is the center of Dakota/Lakota culture.
The camp feels like that center, the center of the buffalo and I understand when Grassrope says, “most of us don't want to leave after we’re done because of the feeling and the kinship and everything that was gained here.”
My son who accompanied me to the camp actually asks to wait awhile before seeing “Rogue One,” the next Star Wars installment. I agree and we wait. We wait to return to camp in the spring as the United States and American's inaugurate Donald Trump as their 45th President and to see if the miracle will happen as it did in the old stories, if our Oyate (nation), our people, and the buffalo that holds them still lives.
