What is the most significant issue facing your field?
The idea that ancestry is always equivalent to race. Tribal affiliation can be determined in many ways, but one important way is to trace ancestry. Here, ancestry is a way to identify the kinship ties that form the basis of most Native societies. This week, a federal district court struck down the Indian Child Welfare Act, a federal law that protects Indian children and tribes by enabling tribal governments to exercise jurisdiction over the fate of their children. The court ruled that, in using ancestry in part to define who is Indian, the statute "uses ancestry as a proxy for race." I have written about these kinds of challenges in my essay Racial Anxieties in Adoption: Reflections on Adoptive Couple, White Parenthood, and Constitutional Challenges to the ICWA and my article The Promise of Mancari: Indian Political Rights as Racial Remedy, and this decision strikes an enormous blow.
What's the most important thing you are working on right now?
Next week I will be in Hawai’i to assist with Ninth Circuit oral arguments in a case called Davis v. Guam. It is a "reverse discrimination" case that has the potential to significantly affect indigenous rights in the future. Guam plans to hold a plebiscite (a sort of advisory vote) to determine the views of the Native inhabitants of Guam regarding whether they want to pursue independence, free association, or statehood. This right of self-determination is guaranteed to colonized peoples under international law, so the Guam plebiscite is limited to those people who became citizens as a result of U.S. colonization of Guam, and their descendants.
A resident of Guam who is not in the statutory class sued, arguing that the law denied him voting rights and equal protection. While it involves different facts and law than the ICWA case, it is premised on the same incorrect assumption that ancestry always means race. If he succeeds in making his argument that any ancestry-based classification amounts to unconstitutional race discrimination, it will be difficult to recognize decolonization rights or the rights of indigenous peoples for any purpose under U.S. law outside the context of federally-recognized Indian tribes (which Pacific Islanders are not).
Two weeks ago, I testified before the Senate Indian Affairs Committee on juvenile justice. Because of the unique jurisdictional rules affecting federally recognized Indian tribes, Native youth who get in trouble may come under tribal, federal, or state jurisdiction. The data is unreliable, but it seems to show that in state systems Native youth (especially girls) are over-represented among young people who are detained, placed out of the home, and placed in secure confinement. This is true even though they are not over-represented among youth arrested for serious or violent offenses and they are most likely to come into the system as a result of alcohol-related and status offenses. My work in this area is focused mainly on bringing more young people into tribal (as opposed to state or federal) court and making sure tribes have the resources to develop innovative programming that does not rely on incarceration the way the other systems do.