THE OKLAHOMA BAR JOURNAL 16 | APRIL 2024 Indian Law The Unfortunate Path: The History Leading to the Indian Child Welfare Act By J. Renley Dennis Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. The goal of this article is twofold. First, it will give some background information on why the ICWA came to exist by providing historical context that is not often discussed when the ICWA is being litigated. Second, it will hopefully encourage readers to seek other sources of information and continue to self-educate themselves on this topic and its historical implications. Let this article be the beginning and not the end of your education on this crucial topic, especially here in Oklahoma. THE FIRST CHILDREN REMOVED: BOARDING SCHOOLS The true first “removal” period would accurately be the era often referred to as the Trail of Tears. Following that period, by the 1870s, federal policy regarding the tribes was assimilation. This attempt to destroy tribal identities peaked around 1879 with the introduction of boarding schools. The Carlisle Indian Industrial School in Pennsylvania opened that year and began enrolling students. The initial head of the school, Capt. Richard Pratt, summarized the school’s mission as “all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.”2 The school “became the model for 408 similar federal institutions nationwide.”3 To quash any resistance, Congress and the enforcers of this federal policy withheld rations, furnishings and funding from families and tribes that would not surrender their children. According to the Bureau of Indian Affairs (BIA) records, when economic oppression was not enough, federal officials resorted to abduction.4 According to an official report in 1886, federal officers would “visit [Indian] camps unexpectedly with a detachment of [officers] and seize such children as were proper and take them away to school, willing or unwilling.”5 These officials even described this act as chasing and capturing the children like “so many wild rabbits.”6 While in attendance at these boarding schools such as Carlisle, the practices to rid the world of Indians included but were not limited to: 1) Changing the children’s names to English names 2) Cutting the children’s hair 3) Confiscating traditional clothing and regalia TOO OFTEN, LAWYERS BECOME DESENSITIZED to the horrors and experiences we hear from our clients and each other. This can be especially true in Indian Country, where tragedies like the Trail of Tears are taught to children as the “land runs,” which celebrate genocide.1 The modern discussions surrounding the Indian Child Welfare Act (ICWA) often fail to address the historical underpinnings of the countless broken promises made by the United States to the various tribes throughout the country.
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