Justice
5:00 am
Wed April 17, 2013

A Supreme Court case about a little known law could be a big deal for Michigan's kids

A few members of the Burrows family, who hope a new state law will make experiences like theirs more rare.

Yesterday the United States Supreme Court heard oral arguments on a case involving the Indian Child Welfare Act. The law is designed to make sure Native American children in the child welfare system stay connected with their tribes.  

Why?  Because for decades, American Indian families all over the country, including in Michigan, were wrenched apart by private and state child welfare workers.

Often with little reason, these workers removed Indian children from their families and tribes and tried to assimilate them into white and usually Christian culture. As barbaric as that might sound, it is not ancient history. 

Judge Alli Greenleaf Maldonado's mother was taken away from her family after her mother, Maldonado's grandmother, died.  She could have been placed with any number of relatives," Maldonado says. "But instead, she was sent to another state to be a domestic worker for a Mennonite minister and his wife."

Maldonado's mother was only four years old when she started working as a maid. Maldonado says it was common practice for young girls to be sent to be domestic workers,  while boys were sent to be farm hands in an attempt to give the children job skills. 

Maldonado's grandmother and maternal uncles were also taken away from their families when they were children, and sent to Indian Boarding Schools in the state. She says the legacy of that time in her own family history is painful and complicated. She also says it means, "two generations lost the ability to parent, because parenting is a skill that is passed down from your parents, to you."

The federal government passed the Indian Child Welfare Act 35 years ago to put a stop to these kinds of abuses.

Since Indian children are still over-represented in Michigan's child welfare system, Greenleaf-Maldonado, a Tribal Court Judge for the Little Traverse Bay Bands of Odawa Indians, and many others worked for years on an even stronger state version of the law. It passed in January with almost unanimous bi-partisan support.

Now, the U.S. Supreme Court might throw a wrench into Michigan's progress. The court is examining the federal Indian Child Welfare Act and nobody knows what the court will decide.

At best, a decision from the Supreme Court will probably create confusion around the Michigan law. At worst, it could undo a lot of hard work that was supposed to better help kids.

The state law is called the Michigan Indian Family Preservation Act. People in the know shorten it to MIFPA. 

As State Court Judge Tim Connors sees it, the law could be a model for the whole state. He get's really passionate about the law, going so far as to call it "salvation" and "a tremendous gift." Connors  sees MIFPA's approach as an alternative to breaking apart families when the state takes children away from their parents. Connors is not afraid to say what he thinks about that approach. "The truth of the matter is that what we do in our state courts and (sic) family courts is very destructive to families, to individuals, to children," he says. 

The tribes want families kept out of this system. Their history and a ton of statistics tell them it takes kids a long time to get out, and it can be pretty damaging. 

Tribes would rather parents get the help they need to be better parents and keep a family together.

Of course that isn't always possible. Abusive and neglectful parents should not get to keep their kids under MIFPA or any other law.

But for many other families who have problems, MIFPA says the state needs to work a little harder to connect Indian families to the resources that can make a difference for them and their children. It's called an "active efforts" requirement. Judge Connors explains it to himself as "following through" and "walking the talk."  Connors also says he thinks the active efforts requirement should be the law for all kids in the state.

So why isn't it? MIFPA will apply to about 300 kids a year in a child welfare system of about 14,000 for two reasons. One is that the tribes used their government-to-government relationship with the state to push for this law. It's almost analogous to Canada negotiating with the state over how Michigan would treat Canadian children on its soil.

Secondly, to expand the law would take a huge culture shift on the state's part. But there is hope it could happen. The idea is that the state can see how MIFPA goes, and maybe use it as a model.

But expansion wouldn't be easy. The tribes do a lot of work as independent watchdogs, advocates and service providers for kids.

Under MIFPA many Indian children are able to access a whole alternative of smaller and more personal Tribal Courts and tribal child welfare agencies if the tribes have the resources to set up those institutions. There isn't anything like the Tribal Court system for the rest of the state’s kids.

And before the law is expanded it needs to work for the kids it was intended for. Caseworkers, judges, tribes, parents, they all have to follow the law. That's been a problem in the past. And, nothing really happens to people who don't follow the law says law professor Kathryn Fort of Michigan State University's Indigenous Law and Policy Center. If an agency or a judge messes up, it just means a child can be stuck in limbo for a long time. 

"If it takes two years for a case to work its way through the system and then a child gets removed to another family, those are two years a family loses with a child," says Fort. "The only person that's hurt is the child when people don't follow the law."

Carrie and Rick Burrows had a personal experience with people not following the federal law. Carrie Burrows is part Cherokee. She and her family have a very happy (and luckily very large) home in the country outside Grand Rapids, Michigan full of nine children. Some of the children are biological and some are adopted.

A few years and few children ago a part Cherokee baby was placed with them directly from the hospital after his birth. His parents' rights were being terminated right away, so the Burrows were ready to adopt him. But the Burrows foster care agency didn't understand the law, and said the Burrows couldn't keep the baby. He was with the Burrows for the first six weeks of his life.

Carrie Burrows said it was "devastating" to see him go. "We allowed our hearts to intertwine with his," she said. "It's really hard not to, to feed an infant every two hours and not bond. So when all this happened I'm screaming, 'I'm Native American! I should be able to keep this child in my home!'" Burrows was right. According to the law,  she should have.

After this all went down the Burrows took a few years to heal. The baby boy was adopted by a loving family who the Burrows now exchange Christmas cards with. The Burrows also got an investigation of their former foster care agency started. They hope the new state law will make experiences like theirs more rare. 

Michigan's tribes will wait and see if that happens.  They'll also wait for the nine Supreme Court justices to rule this summer on ICWA, a law that could be a roadmap to a better child welfare system for all the state’s children.

*This story was informed by the Public Insight Network. Share your story here.

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