Sarah Deer, Elise Higgins & Thomas White on Racist Editorializing about ICWA

Sarah Deer, Elise Higgins, and Thomas White have published “Editorializing ICWA: 40 Years of Colonial Commentary” in UCLA’s Indigenous Peoples’ Journal of Law, Culture & Resistance.

An excerpt:

Despite studies concluding ICWA has been a successful law to curb the crisis of child removal in Indian country when implemented correctly, a significant number of attorneys, think tanks, and politicians argue that ICWA actually harms Native children and should be repealed. Oth- ers argue that ICWA has served its purpose and is no longer necessary. This article considers how newspaper editorials perpetuate misinformation about ICWA, its history and its purpose. Moreover, we explore how anti-ICWA authors employ “words of colonialism”—in particular, the use of derogatory words and phrases to portray Native people as bad parents and Tribal Nations as dysfunctional. Providing inaccurate and racist characterizations of ICWA is one of the primary tactics used by editorials to delegitimize ICWA. Emotionally triggering and wholly inaccurate language is often employed as a sensationalist method to grab the reader’s attention by presenting the law in terms of clear-cut morality.

Frederick Thompson Richards, Life Magazine, 1900

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.