Tribal Courts and Families: Native American Sovereignty and the Indian Child Welfare Act

Theresa Pouley, chief judge of the Tulalip Tribal Court in Washington, Michael Petoskey, chief judge of the Pokagan Band of Potawatomi Indians in Michigan, and William A. Thorne Jr., a Pomo/Coast Miwok Indian appointed to the Utah Court of Appeals, discuss the Indian Child Welfare Act and the advantages of transferring child welfare cases from state to tribal jurisdiction. This is one of three podcasts produced in collaboration with the National Council of Juvenile and Family Court Judges. (July 2011)

The following is a transcript of the podcast:

Robert V. WOLF:
Hi, I'm Rob Wolf, Director of Communications at the Center for Court Innovation. This is one of several special podcasts the Center's doing with the support and assistance of the National Council of Juvenile and Family Court Judges, which is hosting its 74th conference in New York City this month, July 2011. Today, I'm speaking with Judge William A. Thorne, Jr., Judge Theresa Pouley and Judge Michael Petoskey, all of whom are judges in tribal courts. They're all involved with a lot of important issues like improving and strengthening tribal judicial systems and the welfare of Indian children. You all have long biographies, so I just thought I'd give a very brief introduction for all of you.

Judge Thorne is a Pomo/Coast Miwok Indian from Northern California. He has served in the past as a tribal judge for numerous tribes. He's also served 14 years as a state trial judge in Utah and in 2000 was appointed a judge at the Utah Court of Appeals. Judge Pouley was appointed this year by President Obama to the Indian Law and Order Commission. She's currently the Chief Judge of the Tulalip tribal court in Washington and an Associate Justice of the Colville Tribal Court of Appeals and a member of the Colville Confederated Tribes in Northeast Washington. And Judge Petoskey is the Chief Judge of the Pokagon Band of Potawatomi Indians in Michigan. I just want to welcome you all and thanks for taking the time out of that conference to chat with me.

I thought we'd focus today on children and families, in part. And I thought we'd start off with the Indian Child Welfare Act, which is a pivotal piece of federal legislation. What are the problems that it's intended to address?

William A. THORNE Jr.:
It's a piece of federal legislation that was intended to remedy the problem of Indian children being taken out of their homes way too often and unnecessarily. It takes a couple of different tacts to try and solve the problem of removing kids too often. It raises the standard of proof that's necessary. It gives an opportunity for extended family to become the first option for surrogate care. And you've got to remember, this was back in the '70s, when most states didn't do that. It provided a mechanism to transfer the decision point to tribal judges, who were more likely to understand the families in context and, therefore, more likely to help them heal and be able to take care of their children.

WOLF:
Okay, so that was Judge Thorne. Thank you very much for that explanation. So it was enacted in '78 and it's 2011 now. I wonder if Judge Pouley or Judge Petoskey wants to talk a little bit about if they feel state and tribal systems have a grasp of what the Indian Child Welfare Act is and how to apply it?

Theresa POULEY:
Well, the Indian Child Welfare Act really is about making state courts engage in some particularly culturally relevant behavior when dealing with Indian children. It isn't a restriction or requirement on tribal court judges. Interestingly enough, most of the recent studies that have been done, and this is true in Washington State, indicate that the Indian Child Welfare Act, whose goal is to place Indian children in Indian families, to decrease the number of times and the length of time they're in foster care, to increase relative placements, but those policy goals are being profoundly not met in state court systems.

So that Indian children actually, in Washington State, for example, end up in foster care four times more often and four times longer than non-Indian children. That Indian children in Washington State, for example, are more likely to end up in detention, more than children from any other race, even though their primary issue, of course, is being abused and neglected. So it's actually a little alarming that given the length of time that the Indian Child Welfare Act has been in place, that we still have so many Indian children who are not placed within their families and within their communities.

With that said, I think Washington State does a pretty good job of trying to transfer those cases to local tribal courts. Tribal courts always have a preference for placement of kids in relative placement. So for example, we have probably 150 dependency cases active in our tribal court. And of those, about 80% of those kids are living either in their own homes or with relatives in their community. That sort of consistency and ability to place kids within their family really is strengthened when you get them back to their community. I think as more judges, state court judges, become educated about how tribal court judges can help facilitate placement of kids in their home, I think you'll see those statistics and numbers change.

WOLF:
And Judge Petoskey, are you seeing something similar in Michigan as well in terms of the number of Indian children who are in placement and some of these challenges of educating state judges about the Indian Child Welfare Act?

Michael PETOSKEY:
The nature of the beast is that education is ongoing. It's not a one-time kind of thing. We, as Indian people, carry the burden of making sure that others understand who we are, what we're about so that we can alleviate any fears, any misconceptions they might have about what a cooperative kind of relationship looks like. I would agree with Judge Pouley. We have many advantages in tribal courts. And as people become more aware of us being the village, you hear it takes a village, well, we are the village. We're members of the community. We're members of those families. The stake that we have as tribal officials and working in those tribal communities is as much like a family member.

WOLF:
This is Rob Wolf. I'm talking with Judge William A. Thorne, Jr., Judge Theresa Pouley and Judge Michael Petoskey here at the Annual Conference of the National Council of Juvenile and Family Court Judges. We're talking about tribal courts and we're talking about child welfare, in particular. Maybe I felt we could take a step back, Judge Thorne. If you could explain, where does the legal authority come from for tribal courts?

THORNE:
Most kids are taught in school about the two different governments that impact their lives, the federal government and the state government. But what that instruction often leaves out is that there is a third leg of the stool in that family of governments and that's the tribal governments. The authority for the tribal government, the sovereignty, actually predates the U.S. Constitution. While the Supreme Court has said that Congress has plenary authority, in other words, Congress has the ultimate say on whether tribal governmental existence continues or not, the policy of Congress, the policy of the Supreme Court has been that tribes have a legitimate government and particularly have an important tool and important voice in taking care of their children.

That's what founded or with the underlying cause of the Indian Child Welfare Act, was a recognition by Congress that tribes had a vested interest in the outcome of their children's cases. So now, the federal law recognizes that parents have a role and have rights in any state court proceeding involving tribal children, but tribes do as well. They have a separate voice that's recognized as being valuable and legitimate about the health and welfare of their children.

WOLF:
Give me a sense of how many tribes, in fact, have their own courts systems.

THORNE:
There are roughly 565 Indian tribes in the country. There's a little over 300 tribal courts.

WOLF:
Tell me, with the existence of these 300 or so tribal courts, what can be done to improve the understanding between these various legs of the stool that you describe?

POULEY:
Education, education, education. It doesn't make any difference if you do it with a grade school child, a child in kindergarten, a high school student, or a judge who's been sitting on the bench for 20 years, they have to understand that tribal courts have been in existence. They're absolutely competent to adjudicate the matters in front of them. They just need to be considered as sort of the equal of state and federal court systems, which they absolutely, positively are. In terms of providing long-term solutions for persons in their community, they really are the experts.

So just an ongoing recognition that they are a co-equal branch of the government, that they are someone who should be respected and maybe more important than that, solicited for input, because the statistics for tribal court and the outcomes in tribal court are the exact same outcomes that federal and state court judges aspire for. We want healthy children. We want to reunify kids with their families. We want to stop substance abuse in families. And we have the tools and the resources in our communities, which can help not only our clients, who are clients of the tribal court system, but clients of the state court system, as well. So equality and communication is sort of the key.

WOLF:
Thank you, Judge Pouley. Judge Petoskey, there's been money from the federal government over the years at various times. Is it going to the right places in terms of helping tribal courts strengthen their capacity to handle child and family cases?

PETOSKEY:
It seems to me that under the trust responsibility, tribes have always, sadly, just received a pittance of what they need to function and operate. But being a tribal member and having been the Chief Judge in my own tribal community for 16 years, I realized that I wasn't going to allow money to be a barrier, that we would put our heads together and collaborate and come around the table and do what we can for our own children. Because if we didn't, nobody else was.

I would like to go back to something Judge Pouley mentioned, and that is, in Michigan when the former chief justice and current justice, Michael Cavanagh, first brought tribal court and state court judges together over 20 years ago so that they could first meet each other and develop strategies for avoiding jurisdictional conflict and strategies also for cooperation, one of the very first things he said to us tribal judges was, "We will learn more from you probably than you will learn from us."

Historically, tribal child welfare systems have not had access to the federal support systems available to the states. The biggest has been IV-E, which is a $5 billion pot of money. Congress just recently authorized tribes to have access to that. There is also a separate fund that the federal government makes available to every state to improve their juvenile court system. It's called Court Improvement Funds. Tribes don't have access to those. So tribal courts have historically, been underfunded in the last 20 years. The training money for tribal courts has, basically, dried up. As Judge Petoskey said, "They're doing a good job of doing a lot with very little." But just a little bit more resources would help them to start innovative practices, new approaches, find ways of helping, because they're already masters of stretching the dollar.

WOLF:
Well, I hope people listening to this podcast can exert some influence and help expand the resources for the incredible work that you guys are doing. Thanks so much for talking with me today. I've been talking about the tribal justice and the Indian Child Welfare Act with Judges William A. Thorne, Jr., Theresa Pouley and Michael Petoskey.

This podcast was jointly sponsored by the National Council of Juvenile and Family Court Judges and the Center for Court Innovation. To find out more about the National Council, you can visit their website at www.ncjfcj.org. And you can learn about the Center for Court Innovation at the Center's website at www.courtinnovation.org. I'm Rob Wolf, Director of Communications at the Center for Court Innovation. Thank you for listening.