The Family Law Quarterly Volume 56 No. 2&3 is titled “Family Law and the Supreme Court, 2022-2023.” It includes three articles on ICWA including ones by Marcia Zug and Julia Gaffney. The website is not yet updated but should be soon. Here is the full edition with all the articles:
Though the Court may not issue a decision until June of 2023, the question that arises time and again is how to preemptively fix what the Court might do to ICWA and federal Indian law. If the Court accepts virtually any of Texas’s arguments, the legal landscape of federal Indian law may be fundamentally changed. At a minimum, it is likely ICWA practice will change at least in some respects. The Court’s ultimate decision, however, does not mean tribes will suddenly stop fighting to protect their children and families. In addition, advocates will continue to fight for just solutions to the massive issues created by the current child welfare system.
In order for tribes to continue that fight, there must be a solution to the funding structure in place now for tribal child welfare and justice systems. The Brackeen litigation has laid bare the importance of tribal governments administering their own child protection and justice systems separate and apart from the states. Tribal governments must have the ability to successfully secure sources of funding for tribal child welfare systems. Without significant changes to the amount of funding and the funding structure, tribes will continue to be at a massive disadvantage, and will be unable to serve their member children and families.
In addition, due to tremendous tribal leadership, the state of Wyoming adopted the entire federal ICWA into state law, creating the Wyoming Indian Child Welfare Act. This act was signed into law by the governor yesterday.
I’m getting a lot of calls and emails about state ICWA laws in light of the pending Brackeen case. A good state ICWA law that is specific to the state practices (see Oregon ICWA law or MIFPA as an example) can take months to complete, especially to ensure participation by all stakeholders, including tribal, parental, and state interests. Until Brackeen is released, it is very difficult to preemptively legislate, or legislate in a way that protects ICWA from the Court’s ruling. However, for states that have no state ICWA laws, if there is the political will to follow the Wyoming lead of incorporating the entire federal law into state law, this would be beneficial if the Court rules that ICWA violates commandeering concerns (ie. states can’t be forced to follow ICWA because it is federal law commandeering their agencies).
But it is important to remember that the Court can rule in a myriad of ways, there is no way to predict the outcome, and it is entirely possible that states will have to revisit their state laws in light of the decision–even those that replicate ICWA. I particularly like the Wyoming model of also passing a law creating *and funding* a taskforce to develop a state specific ICWA as well.
Senator James Abourezk passed away on Friday. He was 92 years old. He was the first chair of the Senate Committee on Indian Affairs. In that role, he was the lead Senator pushing for ICWA, and held hearings for over three years, taking testimony on what was happening to Native families across the country. He sponsored S.1214, the Senate bill that led to the House bill which became ICWA. He held the 1974 Hearings, as well as the 1977 and 1978 Hearings. NARF has collected his letters, where he expressed unreserved support for Native children, families, and tribes. Here is the opening paragraph of one of his letters on the eve of voting:
Throughout the course of this legislation the authors of this bill have been charged with having placed the interests of Indian tribes and the parents of Indian children above the interests of the child itself. I have always rejected this charge. The central concern of this legislation is the welfare of Indian children. Both the Senate and the House version are based on the assumption and indeed the finding that the interests of Indian children are best served by preserving their relationship with their natural family whenever possible, and when that is not possible, placing them with a family or in a setting which shares their own cultural values and heritage.
ICWA was a result of the hard work of so many people, but Senator Abourezk was instrumental in not only its passage, but in preserving the testimony of Native parents, leaders, and elders about the time before ICWA. His kindness to those who were testifying about horrible treatment they received is evident in the record, as was his indignation at that treatment. He did all of this in a single term in the Senate, and was also instrumental in ISDEAA and AIRFA. From the Washington Post:
Mr. Abourezk represented South Dakota for single terms in the U.S. House and U.S. Senate during the 1970s, where he exemplified a brand of Democratic politician known as Prairie Populist. He fought passionately — and with humor — for those he felt were the downtrodden: farmers, consumers and Native American people.
Mr. Abourezk was the first chair of the Senate Committee on Indian Affairs and successfully pressed for the American Indian Policy Review Commission. It produced a comprehensive review of federal policy with American Indian tribes and sparked the Indian Self-Determination and Education Assistance Act, the American Indian Religious Freedom Act and the Indian Child Welfare Act — a landmark piece of legislation meant to cut down on the alarming rate at which Native American children were taken from their homes and placed with White families.
I never got to meet the Senator, but it is still very difficult for me to put into words the impact of his single Senate term. I can’t help but think that his leadership in the Senate, with his unreserved support for Native families and tribes, is especially needed now.
Finally, here is a link to the testimony that took place yesterday in the Minnesota Senate.
This bill is supported by the ICWA Law Center, one of the only organizations that provides direct, trial level legal services to Native families, and they do it very well. They are currently holding a fundraiser with Heart Berry:
And listen, I’m not responsible if you follow that link and then get sucked into buying a whole bunch of stuff from Heart Berry because it’s basically impossible not to. I don’t make the rules.
From 2017 through 2022, while the Indian Child Welfare Act (“ICWA”) was under direct constitutional attack from Texas, state courts around the country continued hearing appeals on ICWA with virtually no regard for the decision making happening in Haaland v. Brackeen in the federal courts. For practitioners following or working on both sets of cases, this duality felt surreal, as they practiced their daily work under an existential threat. The data in this article draws from the authors’ previous publications providing annual updates on ICWA appeals, and now includes cases through 2021. It provides a description of appellate data trends across this time period, as well as for each year, while also highlighting key appellate decisions from jurisdictions across the country. Perhaps what this article demonstrates more than any single thing is the amount that ICWA is a part of child welfare practitioners’ daily lives now, in a way that will be difficult to upend, regardless of the Supreme Court’s ultimate decision.
This is particularly recommended for practitioners–we’ve taken the data from all our past articles to put them into one. One of our charts still needs a labels fix from our data expert, Alicia Summers, but otherwise the article has undergone peer review and will be published soon.
The Court agreed that ICWA applied to a third party custody petition where the parent could not get her child back upon demand, but rejected the argument the child must be returned immediately under 1920.
These type of third party cases are particularly important to keep an eye on, as agencies often push cases in this direction to avoid filing a petition on a parent (this itself is a complicated topic). Regardless, parents and tribes shouldn’t lose certain rights under ICWA if the placement meets the definition of a foster care placement under the law.
“ICWA doesn’t prevent an individualized assessment of the best placement for each child,” says Kathryn Fort, director of the Indian Law Clinic at Michigan State University. State courts do this type of assessment “every day,” she says, adding, “I personally don’t know a state court judge who would be comfortable being told that they weren’t allowed to do an individualized assessment.”
But for an Indian child, Fort says, that individualized assessment includes consideration of the child’s relationship with her relatives, her language, her religion, and her tribal tradition.
“A child isn’t separate from her tribe,” she adds. “That child is sacred to that tribe.”
Colorado is the most recent state to add a pro hac rule for ICWA cases. This rule is pretty narrow, and only applies for attorneys representing tribes where the tribe has moved to intervene in the case on behalf of their child. This would not apply to any attorneys representing individuals (like a grandma or auntie) in an ICWA case, nor to any appellate work on behalf of tribes filing amicus briefs. However, the rule only requires a verified motion to avoid both fees and local association, which is great for tribal attorneys.
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