Legal

“Please,” John whispered.  “Let me, let us have our own pain.”  John . . . quickly walked to the edge of the building, and looked down at the streets far below.  He was not afraid of falling.  John stepped off the last skyscraper in Seattle. . . .  It was quiet at first. . . .  He listened to the silence, felt a heavy pressure in his spine, and opened his eyes. . . . John looked down at himself and saw he was naked.  Brown skin. . . .  An Indian father was out there beyond the horizon.  And maybe an Indian mother . . . .  John wanted to find them both.  He took one step, another, and then he was gone. Sherman Alexie, Indian Killer, 411-13 (1996).

In his novel Indian Killer, Sherman Alexie provides a vivid description and account of John Smith, a twenty-seven year old American Indian raised by his adoptive white parents in Seattle, Washington.  Id. John’s life and problems make him the perfect embodiment of the harm to Indian children that Congress attempted to prevent by passing the Indian Child Welfare Act (ICWA) of 1978.  25 U.S.C. § 1901 (pdf).  He is an Indian child, removed from his mother at birth without apparent cause, and adopted by a white family.  He gains a white identity in his youth, only to find that it is not really his own as a teenager, when he starts to face discrimination and abuse.  But he does not have an Indian identity either; he is not even aware of the tribe he comes from and his only exposure to Indian culture is a conglomeration of generalized, stereotyped intertribal information that his parents so diligently try to provide him with.  In this identity abyss, John first becomes angry, and then he becomes mentally ill.  Finally, after a flurried night of pain and confusion, John ends his own life.  John’s life is the anecdote that is cited in the legislative history of the ICWA, and is often cited as the main purpose behind the Act.  In utilizing this generalized, anecdotal experience of the American Indian child removed from his or her Indian home, Alexie ends up creating an incredibly moving account of the pain and heartache actually caused.  Alexie’s story about John puts life into the legislative anecdote and perhaps indicates that the anecdote may actually be as broad-based as it claims.  At the very least, John’s story allows the non-Indian a chance to see a realization of the Act’s generalized Indian child, which could serve to garner much-needed sympathy and support for the ICWA.

In 1978, Congress passed the ICWA.  Its stated declaration of policy is “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .”  § 1902.  The ICWA was passed because Indian children were being removed from their homes in record numbers; 25-35% of all Indian children were living in foster and adoptive placements at the time the Act was passed, and 85% of those Indian children were residing with non-Indian families.  H.R. REP. NO. 95-1386, at 9 (1978) (pdf).  The generalized story of an Indian child removed from his or her Indian home that underlies the Act has four main elements.  First, the child is generally removed from his or her Indian home by a state child welfare worker who is not privy to tribal social practices.  Id. at 9-10.  The worker most often removes a child based on the dominant culture’s theory of parental abandonment, because the child has been residing with an extended relative (rather than the parent) for a prolonged period of time.  Id. at 10.  The Indian child is then placed in a white foster or adoptive home, and after such placement retains no connection to his or her Indian family or tribe.  Id. at 9.  The child maintains a white identity until discovering he or she is not actually white.  This usually happens as a teenager, when outsiders treat the child differently.  Holyfield, 490 U.S. 30, 33 n.1 (1989).  Finally, with all of this identity confusion the child grows into a very confused young adult and tends to display “maladaptive behaviors” such as mental health problems and drug abuse.  B.J. Jones, The ICWA Handbook 4 (1995).  The suicide rate among young adult Indians remains very high.

Alexie’s portrait of John Smith meets all four of these elements.  First, John was removed from his Indian home at birth.  Born in 1968, John’s adoption occurred ten years before the ICWA was enacted.  It is not entirely clear what the circumstances of his adoption were.  As John envisions it, his mother was a fourteen year old Indian woman living on a reservation.  She gave birth to him in an IHS hospital, and he was immediately torn from her arms and taken by helicopter to his white adoptive parents.  Alexie at 3-8.  Regardless of the accuracy of this vision, John was definitely taken from his mother under questionable circumstances.  Daniel and Olivia Smith, John’s white adoptive parents, are talked into adopting an Indian baby by the adoption agency because Indian babies are “less popular” than white babies.  Id. at 9.  The adoption agency official is quick to correct this language, but goes on to lump babies of color with physically handicapped and mentally retarded babies.  The agent tells Daniel and Olivia that there is not an Indian home available for the Indian baby, but then goes on to say: “The best place for this baby is with a white family.  The child will be saved a lot of pain by growing up in a white family.  It’s the best thing, really.”  Id. at 10.  The fact that the adoption agency tells Daniel and Olivia that an Indian baby is much more readily available than a white baby, coupled with the agent’s attitude concerning what type of placement is in the baby’s best interest, supports the conclusion that John was removed from his mother without reason; something the ICWA was enacted to guard against.  Even if John’s mother reportedly “chose” to give the child up for adoption, the agent’s attitude indicates possible coercion.  Otherwise, it does not make sense for the agent to feel the need to reassure the Smiths that the mother is doing the right thing, or that placement in a white home is actually in the child’s best interest.  Id. Additionally, removing John from his teenage mother implicates the dominant culture’s notions of parental fitness.  Whether the mother would have been considered fit on the reservation and in her tribal community is never addressed, but the fact that she is so young speaks to the non-Indian’s understanding of age-appropriate behavior.  The agent’s comment about the mother’s choice being the “right” choice also goes to the mother’s perceived ability to care for her child based on non-Indian parenting standards; another factor that the ICWA was enacted to guard against.

Second, John was placed in a white adoptive home, and retained no connection to his Indian relatives or tribe.  Daniel and Olivia knew being a white couple with a brown child was not going to be easy, and did their best to give John a sense of his Indian self.  However, the adoption agency would not give the Smiths John’s tribal affiliation or any information about his birth family, other than the fact that his mother had been fourteen when she gave birth to him.  Id. at 12.  So Daniel and Olivia did their best to give John a general sense of what it meant to be Indian.  Olivia scoured books on Native Americans, looking for any child that resembled her child in an attempt to decipher John’s tribe.  Id. at 12.  She read history books about widely-known tribes and famous Indians from the eighteenth and nineteenth centuries.  Id. She bought children’s books about Indians and read them all to John.  Id. She learned basic words in several different Indian languages, and tried to teach them to John.  Id. She watched westerns and documentaries, and stopped Native people in the grocery store to ask them questions about being Indian.  Id. Olivia and Daniel even had John baptized Catholic by a Spokane Indian priest named Father Duncan, who served as John’s only real Indian connection until he was an adult.  Id. at 13.  His parents also took him to Indian events, such as powwows and Indian basketball tournaments.  Id. at 20.  But after all of this well-meaning effort on the part of two non-Indian parents, John still ended up in an identity crisis.  His knowledge of Indian identity was an intertribal conglomeration of myths and words and historical figures, not the identity of an actual Indian.  And when he was in an all-Indian crowd for the first time, at the Indian basketball tournament, he just felt betrayed by what his parents tried to teach him because the Indians there were nothing like what he had imagined Indians to be.  Id. at 22.  John’s continued fear and sadness into adulthood despite his parents’ best efforts at first, raising him in a loving, supporting, upper middle class family; and second, giving him a taste of Indian background and culture, supports the idea that Indian children are seriously harmed when denied the ability to connect with their Indian families and heritages.  John’s ultimate disposition also supports the conclusion that a generalized, stereotypical overview of “Indianness” is not enough “connection” to really benefit an Indian child placed in a white home.

Third, John realized he was different from his parents at a very young age, but the difference really seemed to hit home when he was a teenager.  John first realized that he was not the same as his parents when he was five years old.  Id. at 305.  He walks into his parents’ bedroom without knocking and finds them in their underwear.  Id. Taking note of their pale skin, John runs out of the room and outside to his favorite tree.  Id. at 306.  There he ponders the difference between his color and the color of his parents (“translucent” for Daniel; “milk” for Olivia) and attempts to wipe the brown off of his face so that he will look like them.  Id. But this incident is not to say that he did not have a dramatic realization about himself as a teenager.  He was only one of four boys of color at St. Francis Catholic High School, and he was the only Indian.  Id. at 19.  Dating white girls in high school brought his difference into sharp relief and caused him almost uncontrollable anger.  Id. at 17-19.  The girls’ fathers started out uncomfortable with him, and their irritation grew as he continued to go out with their daughters.  Id. at 17.  The girls inevitably broke up with him, and in his mind it was a product of their fathers’ discomfort.  Id. at 18.  Any given father would have a problem with his dark skin; assume he was an indigent scholarship student; or attribute to John a host of issues based on his adoption status.  Id. Though the girls never mentioned their fathers when breaking up with John, this sort of attitude on the part of non-Indian parents has historical support.  As noted by a psychiatrist who testified to the negative effects of non-Indian adoption of Indian children in the ICWA hearings of 1974:

[Indian children] were raised with a white cultural and social identity.  The are raised in a white home.  They attended, predominantly white schools, and in almost all cases, attended a church that was predominantly white, and really came to understand very little about Indian culture, Indian behavior, and had virtually no viable Indian identity.  They can recall such things as seeing cowboys and Indians on TV and feeling that Indians were a historical figure but were not a viable contemporary social group.  Then during adolescence, they found that society was not to grant them the white identity that they had.  They began to find this out in a number of ways.  For example, a universal experience was that when they began to date white children, the parents of the white youngsters were against this, and there were pressures among white children from parents not to date these Indian children . . . .  [T]hey were finding that society was putting on them an identity which they didn’t possess and taking from them an identity they did possess.  Holyfield, 490 U.S. at 33 n.1.

John’s personal experiences up to high school mirror this testimony.  John was raised in a white home with white adoptive parents; attended St. Francis, a predominantly white school; attended the Catholic Church, which in Seattle is predominantly white; and came to understand Indian culture only through the scattered information his parents could provide and the Spokane Indian Catholic priest.  Though realizing at a young age that he did not have white skin, it was in high school that John realized his non-white skin relegated him to a status of less than a real person.  Alexie at 19.  This realization came through the experience of dating several white girls whose white fathers did not approve of the coupling.  It was in high school that John started displaying serious mental health problems, and it was in high school that John realized he had no identity.

Fourth, John’s identity void first causes extreme anger, then severe mental health problems, and finally his death by his own hand.  John begins to experience nearly uncontrollable anger in high school, and puts considerable effort into pushing it down and holding it in.  In the middle of class he would have to get up and go to the bathroom.  Id. He would lock himself in a stall and fight his anger by biting his tongue and lips until they bled, holding himself tightly until he shook, shutting his eyes and grinding his teeth.  Id. The intensity of his anger increased such that by the time he was a senior he was taking these side trips to the bathroom on a daily basis.  Id.

As an adult, John’s anger turned into something much deeper and more sinister.  Alexie does not specify exactly what is wrong with John, but his actions indicate a serious mental health disorder, such as schizophrenia.  John experiences visual and audio hallucinations, he is unable to socialize with people (white and Indian alike), he does not like to be touched, he is paranoid about being poisoned, he does not speak logically, he has violent fantasies and tendencies, and he is very unpredictable.  For example, John’s visual hallucinations often include Father Duncan walking in the desert; and he is constantly questioning if what he sees is actually real.  See id. at 269.  His audio hallucinations consist of voices in his head pulling him in opposite directions, and sometimes just plain screaming.

As for socializing, John struggles to interact with his parents, mostly telling them to go away and leave him alone when they come to his apartment to visit him.  But he does not socialize well with non-whites either.  He struggles to communicate with Marie Polatkin, the Spokane Indian woman he meets at a powwow at the University of Washington.  And he has a difficult time communicating with Paul and Paul Too, the graveyard shift counter clerk and security guard, respectively, at Seattle’s Best Donuts.  These men he sees and speaks with on a very regular basis, but remains jumpy and paranoid around them.  Id. at 99-100.  John even has a difficult time talking with the homeless Indians under the bridge; they are constantly asking him what his tribe is, and he always feels uncomfortable at that question because he does not know.  John also has a difficult time with physical interactions.  He does not like loud noises, and he does not like to be touched.  And he is continually paranoid that someone has poisoned him.  Though he goes to Seattle’s Best Donuts often, he still has Paul Too, the security guard, take a bite of his donut and a sip of his coffee before he will have any himself.  Id.

John’s mental illness also manifests itself in violent tendencies.  Soon after John’s story begins, we find him fantasizing about killing a white man, and entertaining a vision of his foreman falling off one of Seattle’s skyscrapers.  Id. at 24-25.  At one point he even tells a priest that he has killed two white men, though Alexie indicates that this is actually not the case.  These fantasies turn close-to-real when he very nearly beats the hell out of Jack Wilson with a sawed-off golf club one evening.  Id. at 268-69.  Yet he is not consistently violent.  He lets Reggie Polatkin beat on him at Big Heart’s Soda and Juice Bar, and he takes some roughing up from Aaron Rogers under the viaduct before Marie comes to the rescue.  Id. at 373-75.  The inconsistencies in John’s behavior seem to be further proof of his mental illness.  Sometimes he has violent rages, and sometimes he can hardly hold himself up.

Finally, John ends his life (though not until after kidnapping Jack Wilson and giving him a nasty cut along the face).  Id. at 411-13.  John takes the last remnants of his rage out on Wilson—a faux Indian—by asking him to “[l]et me, let us have our pain,” essentially asking Wilson to take the white identity he has and leave the Indian identity for the Indians who have been deprived of their own.  Id. at 411.  Then John steps off the building, Seattle’s last skyscraper.  Id. at 12.  Alexie leaves us to imagine that the first time John is truly at peace with himself and his Indian identity is at the point of death, when his spirit looks down, takes note of his brown skin, and steps away from his body to finally start his search for Father Duncan and his Indian mother.  Id. at 413.  John’s life makes the tragic but frequent tale of American Indian children removed from their Indian homes and placed with non-Indians come to life.

All of these experiences (except for the suicide) parallel the experience of an Indian boy documented by psychiatrists attempting to insert cultural factors into the DSM-IV diagnostic system.  Douglas K. Novins, A Critical Demonstration With American Indian Children 1244 (1997).  The child is documented at intervals from age eight, when he was removed from his Indian mother and placed with a non-Indian family, to age sixteen, when he was reunited with his Indian mother.  During the time he was with his non-Indian foster family, this child displayed aggressive outburst and oppositional behavior, along with a tenuous Indian identity (identifying himself as “half-Indian”).  Id. at 1247.  By the time the boy is sixteen he is returned to his mother and displays a strong Indian identity, along with slightly better behavior.  However, in the interim he began abusing drugs and alcohol, and played Russian roulette with a friend who did not make it through the game.  Id. This example shows that John’s mental health experiences and “maladaptive behavior” very closely mirror that of other Indian children removed from their Indian homes and placed with non-Indians.  The psychological study indicates that Alexie is not exaggerating, and the problems inflicted on these children are very real.

The narrative Alexie provides of John Smith, though incredibly sad, may actually do productive work in the legal system.  It is often difficult for politically liberal non-Indians to understand the value of the ICWA and how it helps Indian children, families, and ultimately tribes.  Politically liberal non-Indians tend to believe in nurture over nature, as well as maintaining vigilance about providing constitutional guarantees to everyone in the United States.  What these activists do not realize is that first, even though an Indian child is raised in a white home, the racial sentiments buried in our culture still keep the child out of his or her acquired white identity.  Thus the Indian child raised in a white home is left with no identity.  Second, Indian tribes are semi-sovereign nations with their own governmental structures and constitutions.  Tribes’ sovereign status leaves them in a position to take or leave the United States Constitution on their own land, and the ICWA’s jurisdictional provisions aim to protect this sovereignty.  The story of John Smith brings home the first point: Indian children need to remain connected to their tribes.  John’s life is a graphic illustration of the damage separation from the tribe can do to an Indian child.  The ICWA was passed to help facilitate and protect this connection, and does so by granting tribes exclusive and concurrent jurisdiction over Indian children.

Some state courts, especially in California, have been questioning the constitutionality of the ICWA based on substantive due process and equal protection.  These courts have decided that if there is no “existing Indian family” from which the child came from, then the ICWA violates both the substantive due process right of children to have permanent placement and the equal protection right of Indian children to not be disparately treated based on genetic heritage.  See Bridget R., 41 Cal. App. 4th 1483 (Cal. Ct. App. 1996) (pdf).  Some courts have found that when a child lacks any connection with his or her tribe, such as when he or she is removed from the Indian family at birth, then there is no “existing Indian family” and the ICWA is unconstitutional as applied.  See Alexandria Y., 45 Cal. App. 4th 1483 (Cal. Ct. App. 1996).  But John’s story shows us that an Indian child need not be ripped from an “existing Indian family” in order to be harmed by placement with a white family.  Indeed, John lived an upper middle class life with the Smiths, and was never lacking in either material needs or love and support on the part of his parents.  Yet he still fell apart.  As one commentator put it:

I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption courts, erase all of their records and send them off to some nebulous family that has a value system that is A-1 in the State of Nebraska and that child reaches 16 or 17, he is a little brown child residing in a white community and he . . . has absolutely no idea who his relatives are, and they effectively make him a non-person and I think . . . they destroy him.  Holyfield, 490 U.S. at 50 n.24.

Perhaps by giving life and a voice to the general trauma story experienced by Indian children, Alexie’s narrative can help expose non-Indians to the very real harms experienced by Indian children such that state courts will rethink the rationality and legality of this particular judicially-created exception.