Breaking Down Silos: Family Courts and Native Military Families

Kate E. FortBy Kathryn E. Fort, JD


Child welfare and military-related families is an understudied area of law, but one that is growing in practice, and is an increasing percentage of a family court docket. The vast amount of academic and practitioner scholarship on the intersection of military and family law focuses heavily on divorce and custody issues, especially as it pertains to active-duty service members. Less has been written on the intersection of involuntary child welfare proceedings and the military, both active-duty and veterans. Involuntary proceedings, which can include contested adoptions, child welfare cases, and some guardianships, are the cases where the Indian Child Welfare Act, 25 U.S.C. §§1901 et al. also applies. Given that citizens of Indian Nations serve in the United States military at higher rates per capita than any other ethnic group, this intersection is of particular importance.

The top states with active-duty military populations include California, North Carolina, Washington, Michigan, New York, Florida, and Arizona, Evan R. Seamone, Educating Family Court Judges on the Front Lines of Combat Readjustment, 52 Fam. Ct. Rev. 458, app. D (2014), which overlap with states with top American Indian populations, according to the U.S. Census. U.S. Census Bureau, 2010 Census Shows Nearly Half of American Indian and Alaska Natives Report Multiple Races (2012) available at, www.census.gov/newsroom/releases/archives/2010_census/cb12-cn06.html. In addition, half of all American Indian veterans live in eight states: California, Florida, Michigan, Arizona, New Mexico, Texas, Oklahoma, and Washington. States with significant disproportionality rates for American Indian children in state care include California, Michigan, and Washington. Alicia Summers & Steven Wood, NCJFCJ, Disproportionality Rates for Children of Color in Foster Care (2012). Those states should consider how to identify any Native veteran parents in their child welfare cases and ensure that they are receiving the services they are due, in addition to those required by ICWA.

Native veterans today are more likely to be younger than their non-Native counterparts, more likely to be women than in the past, more likely to have children, more likely to have a service-connected disability, and more likely to have served fewer than five years. They also have the lowest median personal incomes compared with other veterans. U.S. Dep’t of Veterans Affairs, American Indian and Alaska Native Servicemembers 11-13, 17, 24 (Sept. 2012). While these statistics do not mean children of Native veterans are more likely to be the subject of a child welfare case, they do indicate that the stressors on many Native families may be especially difficult for Native veterans.

One way courts can begin to address this overlap is by opening the silos between the criminal and family court dockets. For those defendants in veteran treatment courts (VTC), having the court follow up to make sure the veteran is not also involved in a child dependency case is vital. Since a VTC allows defendants charged with nonviolent, substance-abuse-related crimes to enter voluntary drug-treatment programs as a condition of probation, if the veteran is a custodial parent, it is likely the state is also involved in their family. However, the VTC, concerned with criminal charges, rarely communicates with the quasi-criminal child welfare docket or the confidential adoption one, and vice versa. Outside of a few model exemplars at the state level, those dockets remain silos.

For Native families in particular, this is deeply unfortunate. In addition to the number of Native veterans who may be involved in both a VTC and a child welfare case, parallels between the courts’ responses to both two communities—veterans and Native families who are struggling—can be striking. Judges need education and training surrounding both groups. They are both subject to federal laws and support that has to be run through state courts. State courts are asked to identify veterans and are required to identify Native children, which some courts see as additional work. Further, there is scholarly work on intergenerational trauma when it comes to both the children of combat veterans and to children of genocide survivors. The structure of the VTC and the role of a VTC liaison—to help the veteran navigate systems and agencies for assistance and support—is an interesting model for a state on what an ICWA court, perhaps beyond simply a specialized docket, could look like.

State court judges running VTC courts could do with training that incorporates information often covered in ICWA training, especially cultural competency, when it comes to Native families. Trainings or handbook-style informational handouts should include information specific to Native veterans and tell how to ensure the services they receive are tribal-specific where available. Developing training materials for state judges on issues facing Native veterans is one area where ICWA advocates, tribal healing to wellness court advocates, and veterans advocates could partner.

One way to stop the siloing effect mentioned above to is to give each family one judge. The National Council of Juvenile and Family Court Judges (NCJFCJ) has an initiative called Project ONE that encourages state courts to consolidate a family’s legal issues in front of one judge rather than many. Unfortunately, because of overwhelmed dockets and an inability to coordinate caseloads, some states have difficulty in just getting one jurist per child welfare case. However, the healing of a parent is required for the healing of a family. Separating those two projects entirely makes success more difficult for both. Family courts have much to learn from the work of those involved in healing-to-wellness courts.

A longer version of this article was published as Kathryn E. Fort & Peter S.Vicaire, TheInvisible Families: Child Welfare and American Indian Active Duty Servicemembersand Veterans, 62 Fed. Law. 40 (April, 2015).


About the Author
Kathryn E. Fort is the Staff Attorney for the Indigenous Law and Policy Center at Michigan State University College of Law. She joined the Center in 2005 as the Indigenous Law Fellow. In her role with the Center she teaches both an experiential learning class and traditional classes in federal Indian law, researches and writes on behalf of Center clients, and manages administrative aspects of the Center. Ms. Fort has written articles on laches and land claims, and has researched and written extensively on the Indian Child Welfare Act. Her publications include articles in the George Mason Law Review, Saint Louis University Law Journal, and American Indian Law Review. She co-edited Facing the Future: The Indian Child Welfare Act at 30 with Wenona T. Singel and Matthew L.M. Fletcher (Michigan State University Press 2009). She also co-edits the popular and influential Indian law blog, TurtleTalk. Ms. Fort graduated magna cum laude in from Michigan State University College of Law with the Certificate in Indigenous Law, and is licensed to practice law in Michigan. She received her B.A. in History with honors from Hollins University in Roanoke, Virginia.  

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