Calhoun County

Guardianship barriers for Native Americans eased through State legislationCalhoun County Tribal Leadership plays key role

Editor's note: This story is part of Southwest Michigan Second Wave's On the Ground Calhoun County series. 

The financial burden for Tribal members who care for children of relatives or friends who are members of Native American Tribes throughout Michigan has been eased through bipartisan legislation ensuring that Native American children will benefit from guardianship assistance. This includes permanent placement with guardians instead of temporary foster care.
The bills, introduced in March by Sen. Jeff Irwin (D-Ann Arbor) and Sen. John Damoose (R-Harbor Springs), were designed to fix a “fundamentally unfair situation” in the state’s Guardianship Assistance Program (GAP), Irwin said in an article for Native American News Online.
Before this legislation, Native American children with guardianship orders from tribal courts or out-of-state courts did not qualify for assistance through GAP.
“As far as impact and eligibility before this was amended, the state wasn’t recognizing the jurisdiction of Tribal Courts and petitions for guardianship brought before them,” says Jamie Stuck, Tribal Chairperson for the Nottawaseppi Huron Band of the Potawatomi. “The Tribal Court would make the decision to put a child in an aunt, uncle, or grandparents’ home and now that’s recognized.”
“We have families taking in young family members and that costs money,” says Judge Jocelyn Fabry, Chief Judge for the Sault Ste. Marie Tribe of the Chippewa Indians, who, along with Stuck, presented testimony during hearings to amend the current GAP legislation.
While these children are in foster care, the foster parents receive payments to help cover the cost of caring for them and the same is true when they are moved into a permanent guardianship situation unless it is ordered by a Tribal or out-of-state court, Fabry says.
“We couldn’t finalize guardianships for Native American children living with relatives who are tribal members because they would be cut off from payments through GAP,” she says. “The language in the state statute was changed to include tribal courts and out-of-state courts. It’s small changes to the language that make a big impact.”
GAP payments
Regardless of programs offered through the NHBP and other Tribes, Stuck says when a child is placed in their grandparent's home, “Every little bit helps and not just the monetary aspects. These folks are in their Golden Years and raising a granddaughter or grandson can be hard with the generation gap and the unexpected of raising a child again and it happens a lot. We have lots of grandparents and aunts and uncles raising our children.”
Although he can’t speak to exact numbers, he does address a widespread notion among non-Native Americans that Tribes have an ample pool of funds to pay these caregivers.

“Everyone thinks tribes have all this money to spend because we have casinos, but we still need to go after grants and utilize money in a responsible way. A lot of our grandparents are retired and living off pensions or retirement funds they accrued during their working years,” he says. “We need to make sure the needs of our children are provided for. Just like anybody else, having children in your home can be taxing on your budget.”
In addition to his role with NHBP, Stuck also is President of the United Tribes of Michigan. It was in the latter role, that he presented testimony during hearings to amend the current GAP legislation at the request of the Sault Ste. Marie Tribe which initiated the push to amend the current legislation.
That Tribe has between 40,000 to 50,000 members and was navigating through a lot more situations where their kids had been placed with relatives which gave them a much better understanding of the financial assistance the guardians needed.
“The important thing out of all of this is that tribes are governments. These amendments uphold and preserve our sovereignty and strengthen our government-to-government relationship with the state and make them accountable to another government,” Stuck says. “It definitely strengthens our sovereignty as tribes and demonstrates that we are very capable of deciding what’s in the best interest of our children. Prior to this, our Tribal judges were making decisions” that were recognized by the state of Michigan but were ineligible for the GAP assistance.
This was especially concerning to Fabry.
“I’m involved in the lives of families affected by this,” she says. “I have cases pending in my court where kids have been placed in foster care with extended family. In tribal communities, we try not to terminate parental rights. Even with permanent guardianships, children are placed with relatives so their parents know they’re not going anywhere.”
Supporting and maintaining the tribal connection
The circumstances leading to Native American children being placed in foster care or guardianship are similar to those of their non-Native American counterparts – parental abuse or neglect, substance use, and behavioral health issues.
But, what leads to a parent being unable to adequately care for their child is deeply rooted in historical and generational trauma for the Native American population.
The forced placement of Native American children in boarding schools intentionally designed to strip them of their culture and language which began with the implementation of the Indian Removal Act of 1830 broke up the family structure with children being removed from their homes, Stuck says.
Because of this, he says, “A lot of our parents don’t know how to be parents.”
The NHBP offered a program that trained parents on how to be parents, but Stuck says not enough parents did the training.
As a way to gauge what tribal members want, the NHBP conducts many different surveys, including a Community health survey that focuses on ACES, substance use, and behavioral health. Stuck says these surveys impact the programs and services provided.
“With Indigenous people, we have so many reasons not to trust people outside of our communities. We have people to provide specialized services that our people want and need,” he says.
As a Tribal Court Judge, Fabry says she deals with “a lot” of family and child protection issues.
“In the foster care system, it’s clear to see that a lot of unhealthy habits lead to child abuse and neglect. This is because of the trauma parents experienced that has been passed on to the generations that followed,” Fabry says. “In the Native American community, this is more prevalent because of the horrific history of the way we were treated. I still see the very much real and significant effects of that in court.”
While making decisions about placements that are in the best interest of the child, the Sault Ste. Marie Tribe, like other tribes in Michigan, works with parents on a reunification plan. This is a requirement once a case comes before a Tribal Court.
“Our tribal social services, when children are placed in foster care, works on a case service plan on what parents need to do to rectify what got them here. They participate in behavioral health and substance use counseling,” Fabry says. “That’s the ideal situation, to come up with a good plan so that parents are able to reunify with their children.”
When reunification isn’t possible, as is sometimes the case, the focus shifts to ensuring that the child remains within the tribal community through a guardianship situation that enables them to maintain contact with their parents and their culture.
Stuck says maintaining these connections is critical to the health and well-being of a child.
“If you have a child who’s used to living on a reservation in their own community and they’re taken away from that, they’re away from their culture and people who understand their heritage and way of life,” he says. “When they’re separated from their community, it can lead to ACES and the continuation of generational trauma. If the Tribe’s involved, they won’t be put in an unsafe place.”
The question of the most optimal placement scenario for Native American children came before the United States Supreme Court in a case that pitted Secretary of the Interior Deb Haaland against the states of Texas, Louisiana, and Indiana and individual plaintiffs that sought to declare the Indian Welfare Act unconstitutional.
Haaland had the support of numerous organizations, including the American Academy of Medicine. Member physicians told the Supreme Court that, “American Indian and Alaska Native foster children’s health and well-being is best protected when they are placed with family or tribal members.”
In June, by a 7-2 margin, Supreme Justices affirmed that the ICWA is constitutional.
The decision “is a victory for Native nations, children, and their families,” AMA President Jesse M. Ehrenfeld, MD, MPH, said in a statement. The law, he added, “is an important tool in redressing centuries of harmful federal and state policies that sought to destroy American Indian and Alaska Native families by systemically separating children from their families and Native nations.
“Connection is everything for not only kids but our tribes. For so many years the Federal government worked actively to assimilate tribes,” Fabry says. “In order for our tribes to continue to have people who know the language and practice traditional cultures and ceremony, we need to make sure our children remain in their communities with those who can be their parents and teachers.”

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Read more articles by Jane Parikh.

Jane Parikh is a freelance reporter and writer with more than 20 years of experience and also is the owner of In So Many Words based in Battle Creek. She is the Project Editor for On the Ground Battle Creek.