Indian Law CLE: “Cutting Edge Indian Law Issues: McGirt v. United States Ramifications and Indian Child Welfare Act Constitutional Challenges”

This Indian law CLE is hosted by Thomas Reuters West LegalEdcenter and is available for on-demand viewing. See more information here.

Program Description:

“Under an 1833 treaty, the United States and the Muscogee (Creek) Nation agreed to set aside land for the latter’s occupation in the Indian Territory, now encompassed within the eastern half of the State of Oklahoma. An 1866 treaty reduced the reservation’s size.  Following the influx of non-Indian settlers in the latter half of the century and passage of various federal statutes to establish a uniform set of laws for both Oklahoma Territory and Indian Territory residents, Congress in 1907 admitted Oklahoma to statehood whose boundaries combined the Territories. Thereafter, the State and its courts treated the Creek Reservation as disestablished and all residents, regardless of Indian status, as subject to state law. In a 5-4 decision, however, the Supreme Court held that the Reservation remained intact and overturned state-law felony convictions of Jimcy McGirt, an Indian, for conduct within the Reservation. The majority reasoned that that the Reservation was not disestablished by Congress and therefore remains Indian country subject the Major Crimes Act, 18 U.S.C. § 1153, and not state criminal law with respect to offenses committed by Indians of the type for which McGirt was convicted. McGirt v. United States, 140 S. Ct. 2452 (2020).  

The McGirt decision raises substantial Indian-law doctrinal issues beyond the immediate question of reservation disestablishment. Ann E. Tweedy, Associate Professor, University of South Dakota Knudson School of Law, will explore those issues, particularly in light of other recent Supreme Court decisions and the Court’s changing composition. Anthony J. “A.J.” Ferate, Of Counsel, SpencerFane, is an Oklahoma practitioner with broad legal and governmental experience and will discuss McGirt’s on-the-ground impact. 

The United States, four Tribes, the State of Texas, and private parties filed petitions for writ of certiorari in September 2021 seeking review of the Fifth Circuit’s closely-divided en banc opinion in Brackeen v. Haaland, 994 F.3d 249 (2021). In complex and multi-pronged constitutional challenges to various provisions of the Indian Child Welfare Act and Administrative Procedure Act-based challenges to regulations issued by the Secretary of the Interior to implement ICWA, the court of appeals affirmed in part, reversed in part, and affirmed in part by an equally divided court without a precedential opinion a district court judgment that had accepted most of the challenges. Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018). It appears likely that the Supreme Court will grant review. Christina M. Riehl, Deputy Attorney General, California Department of Justice, Bureau of Children’s Justice, has been involved in the litigation from its outset through amicus filings on behalf of California and will discuss the constitutional issues raised by the certiorari petitions. 

The program will be moderated by Tania Maestas, Deputy Executive Director, Attorney General Alliance.”

Fletcher & Singel on Lawyering the Indian Child Welfare Act

Fletcher and Singel have posted “Lawyering the Indian Child Welfare Act,” forthcoming in the Michigan Law Review‘s upcoming symposium on civil rights lawyering. Here is the abstract:

This Essay describes how the statutory structure of child welfare laws enables lawyers and courts to exploit deep-seated stereotypes about American Indian people rooted in systemic racism to undermine the enforcement of the rights of Indian families and tribes. Even where Indian custodians and tribes are able to protect their rights in court, their adversaries use those same advantages on appeal to attack the Constitutional validity of the law. The primary goal of this Essay is to help expose those structural issues and the ethically troublesome practices of adoption attorneys as the most important ICWA case in history, Brackeen v. Haaland, reaches the Supreme Court.

Fletcher and Fort’s Rewritten Opinion in Adoptive Couple v. Baby Girl

Fletcher and Fort posted “Intimate Choice and Autonomy: Adoptive Couple v. Baby Girl,” forthcoming in CRITICAL RACE JUDGMENTS (Cambridge Univ. Press, eds. Bennett Capers, Devon Carbado, Robin A. Lenhart, and Angela Onwuachi-Willig) (forthcoming 2021).

As if there was any doubt, we have reached the opposite outcome as the Supreme Court did back in 2013. A few excerpts:

This case is about a little girl (Baby Girl) who is a citizen of the Cherokee Nation, like her father, grandparents, and a multitude of generations before her. American Indian tribal citizenship with a federally recognized tribe is a unique concept in American law. E.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978) (“[Indian tribes] have power to make their own substantive law in internal matters. . . .”). Tribal citizens are beneficiaries of the federal government’s trust relationship with Indian tribes, and the federal government has promised to tribal citizens for centuries to assist in the maintenance of tribal governments, cultures, and sovereignty. Worcester v. Georgia, 31 U.S. 515, 556 (1831) (“[The Cherokee treaty], thus explicitly recognizing the national character of the Cherokees, and their right of self government; thus guarantying their lands; assuming the duty of protection, and of course pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force.”).

And:

The ethically dubious acts of the Petitioners in this case extends to this Court’s amici. Several amici invoked the racist dog whistle of referring to the Petitioners as the “only family” Baby Girl has ever known. E.g., Brief for Guardian Ad Litem, as Representative of Respondent Baby Girl, Supporting Reversal at 56 (“Indeed, it is hard to imagine what liberty interest is more important to a 27-month old child than maintaining the only family bonds she has ever known, absent a strong showing of necessity.”) (emphasis added); Brief of Amica Curiae Birth Mother in Support of Petitioners at 3 (“The decision below effectively negated Birth Mother’s decision to place Baby Girl with Adoptive Couple, and ripped Baby Girl from the only family she has ever known, in derogation of both Birth Mother’s and Baby Girl’s rights and expectations under state law.”) (emphasis added); Brief of Amici Curiae Bonnie and Shannon Hofer; Roger, Loreal, and Sierra Lauderbaugh; and Craig and Esther Adams in Support of Petitioners at 38 (“[T]he lower court took non-Indian Petitioners’ adopted Indian daughter from them – destroying the only family she has ever known.”) (emphasis added); Brief of Amici Curiae National Council for Adoption in Support of Petitioners at 13-14 (“ICWA is implemented in some cases to traumatize children by forcing them into completely unknown environments, traumatizing them by removal from the only family they’d ever felt a connection with and imposing the developmental delays that come with the traumatic removal from a secure attachment.”) (emphasis added).[1] It appears that for some of our amici, the “only family” that matters is the non-Indian Petitioners’ family. For these amici, the Indian family and other biological relatives are strangers and foreigners. The only pain and shame of removal and separation that matters is that of the non-Indian family. It is apparent the “only family” dog whistle is designed to distract our attention from the ever-present bias against Indian parents and relatives in the child welfare and adoption system. This we will not accept. As noted above, this Court long has been complicit in dehumanizing Indian people. In Professor Harris’ words, “[C]ourts established whiteness as a prerequisite to the exercise of enforceable property rights.” Harris, supra, at 1724. No longer. We additionally suspect that this form of advocacy implicates American Bar Association Rules of Professional Conduct 3.4 (Fairness to Opposing Party and Counsel), 3.5 (Impartiality & Decorum of the Tribunal), 4.4 (Respect for Rights of Third Persons), and 8.4 (Misconduct).


[1] One commentator even referred to the Cherokee family here, who descend from an Indigenous nation that has been present in this hemisphere since time immemorial, as “foreign.” Thomas Sowell, Indian Child Welfare Act does not protect kids, Denton Record-Chronicle, Feb. 1, 2018, at 6A (“This little girl is just the latest in a long line of Indian children who have been ripped out of the only family they have ever known and given to someone who is a stranger to them, often living on an Indian reservation that is foreign to them.”) (emphasis added).

ASU Indian Child Welfare Act Webinar (10/21/2020)

ICWA in Action flyer

Indian Child Welfare Act Webinar – in 2 weeks 

October 21 

2:00-3:30 pm Pacific time 

ASU Law’s Indian Legal Program is proud to host a webinar on the latest developments in the implementation of the Indian Child Welfare Act (ICWA). Please join us for an engaging session with panelists:  

  • Kimberly A. Cluff, former General Counsel, Morongo Band of Mission Indians
  • Kathryn E. Fort, Director and Adjunct Professor, Michigan State University College of Law Indian Law Clinic
  • Chrissi Ross Nimmo, Attorney General, Cherokee Nation Deputy
  • April Olson (’06), Partner, Rothstein Donatelli LLP
  • Lawrence Roberts (Moderator), Professor of Practice and Executive Director, ASU Law’s Indian Gaming and Tribal Self-Governance Programs

Register for free webinar at: law.asu.edu/icwa