New Child Welfare Court Being developed by the Houlton Band of Maliseet Indians

In this article Stephen Brimley summarizes the history of the Maliseet Tribal Court and predicts its opening later this year. Here are some highlights:

• The Court will handle child protective cases.


• The Court will consider the “whole family” (defined broadly, by Native standards).


• The Court will offer a broad variety of services to any involved family member.


• The Court will work toward keeping a family united (or re-united) as long as it is in the best interest of the child.


• The Court aims to incorporate services that will help heal family members, entire families and the Maliseet community at-large.


• The Court will be available to tribal members anywhere in the state. It expects to hold hearings where the parties live and will also use technology to link remote parties for Court meetings and hearings.

In 1999, in an effort to increase the State of Maine's compliance with the federal Indian Child Welfare Act (ICWA) of 1978, the Houlton Band of Maliseet Indians (the Band) began to establish a collaborative working relationship with the State. This relationship was most notably marked by the State accepting responsibility for non-compliance, the Band asserting their inherent rights of sovereignty, and by the State and the Band committing to improving the outcome for Maliseet children in State child welfare custody. At the heart of this intergovernmental relationship is the formal tribal-state child welfare agreement that was signed at a historic ceremony held on the Maliseet reservation on September 16, 2002.

Implicit in the Agreement was that the Band would eventually develop a court to hear Maliseet child welfare cases. Starting in 2005, the Band began preliminary research into the feasibility of establishing a Court and decided to move forward with the efforts in 2006. In 2007, the Band was awarded a grant by the United States Department of Justice to help develop the court. Ironically, it was the Band's efforts to develop a court that brought into question whether or not the Band actually had the legal right to establish a court. Elsewhere, the ability to establish a court by a federally recognized Native American tribe is inherent. However, according to State and Federal court interpretations of the 1980 Maine Implementing Act, the Band was prohibited from establishing a tribal court. In turn, the Band would be required to obtain a fix from the Maine Legislature in order to administer jurisdiction over their members. Committed to the idea of having a tribal court and seeing it as an opportunity to further enhance their sovereign rights, the Band pursued the legislative fix. The Band was successful with their efforts and the legislative fix went into effect October 1, 2009.

The Band, however, does not see a tribal court as an alternative to the current tribal-state arrangement. Instead, the Band sees the Court as supplementing an already strong working relationship that will need to be continued if the best interests of Maliseet children are going to be met. With an established and proven intergovernmental relationship that is providing child welfare hearings and adequate services, the natural question would be why would the Band want to develop their own Court and assume all of the responsibilities associated with having a court? In short, the answer is because the court will be a Maliseet court; a court in which the Maliseet will be able to make decisions about their own children with no outside interference by the State or other non-Maliseet agencies. Supporting this decision is long-term research by institutions such as the Harvard Project on American Indian Economic Development that shows how tribally developed and run institutions out-perform and are more cost effective than all other non-tribal institutions that have historically worked on tribal-related issues. Regardless of how effective the current intergovernmental arrangement may be, the Band believes they can do better. This belief is strongly rooted in the cultural value and importance of families in general and in children in particular. For that reason, the Court is developed to treat the whole family (which is culturally defined more broadly than non-Native definitions) that are involved or impacted by a child welfare case. The Court envisions working with and ideally offering a variety of services offered by tribal, private and State programs to any involved family member in the hope of keeping the family united (or re-united) as long as it is in the best interest of the child. In this regard, the Court would differ from most other types of Courts in that while it would primarily and immediately react to situations which are impacting the health and well-being of a child similar to other courts, it would also aim to incorporate and provide services to ideally help heal other individual family members, entire families and the Maliseet community at-large.

As with any other tribal community, the impact of a child welfare case, regardless of where it occurs, impacts the whole tribe. It was unrealistic to expect a Maliseet family who lives in the Portland area to travel to the Houlton to access the tribal court. For that reason, it was important to the Band that a tribal court was accessible to all tribal members, regardless of where they live in the State. As part of the legislative fix, the Band worked with the State to ensure that hearings can be held anywhere in the State. In conjunction with that effort the Court is currently pursuing technology that would enable involved parties to be linked remotely regardless of where they are located.

The Court hopes to begin hearing cases in late 2010. See Community Resources on page 7 for contact information.