Indian Child Welfare Act

Taylor Mills on Self-Indigenization and the Indian Child Welfare Act

Matthew L.M. Fletcher

Dr. Taylor Elyse Mills has published “Protecting the Next Seven Generations: Self-Indigenization and the Indian Child Welfare Act” in Genealology.

Here is the abstract:

In 1978, the United States enacted the Indian Child Welfare Act (ICWA) “to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture.” The ICWA was codified to address centuries of genocidal government policies, boarding schools, and coercive adoptions that ruptured many Native families. Now one of the strongest pieces of legislation to protect Native communities, the ICWA was designed to ensure that Native foster children are placed with Native families. Implementing the ICWA has not been smooth, however, as many non-Native foster parents and state governments have challenged the ICWA. While the ICWA has survived these legal challenges, including the recent 2023 Haaland v. Brackeen Supreme Court case, the rise of non-Natives claiming Native heritage, also known as self-indigenizers or “pretendians,” represents a new threat to the ICWA. This Article presents a legal history and analysis of the ICWA to unpack the policy implications of pretendians in the U.S. legal context. This Article demonstrates how the rise of pretendians threatens to undermine the very purpose of the ICWA and thereby threaten the sovereignty of Native peoples. By legally sanctioning the adoption of Native children into non-Native pretendian homes, the ICWA can facilitate a new era of settlers raising Native children, rather than preventing this phenomenon as intended. In response, this Article offers concrete policy recommendations to bolster the ICWA against this threat.

ICWA Webinar Series: The Indian Child Welfare Act and the Role of Tribal and State Attorneys, October 8, 2024, 2:00 – 3:45 pm EDT

Matthew L.M. Fletcher

National Indian Country Training Initiative Online Training Announcement

Title: ICWA Webinar Series: The Indian Child Welfare Act and the Role of Tribal and State Attorneys

Date: October 8, 2024, 2:00 – 3:45 pm EDT

 

Register Here: https://usao.webex.com/weblink/register/r07e72e3d5222b35a4d9c7b80a47fc4f7

Registration deadline: October 4, 2024

Non-DOJ applicants will receive notification of their application status by: October 7, 2024

The Indian Child Welfare Act (ICWA) provides minimum Federal standards for the removal of Indian children from their families and placement in foster and adoptive homes. Tribal and State attorneys play important roles in advancing the protections of ICWA.  This webinar is the fourth in a multipart series concerning the application of ICWA in State courts and the role of Tribal courts in cases involving ICWA. Kate Fort, a nationally recognized expert on ICWA will discuss the implications of ICWA in representing Tribes and States in child welfare cases. Topics will include transfer, state agreements, and many other important topics. CLE has been requested.

There is no tuition charge for this training.

If you have any questions, please contact Heather Cumper at heather.cumper@usdoj.gov or Leslie A. Hagen at leslie.hagen3@usdoj.gov.

2024 Michigan Supreme Court Candidates and ICWA

Matthew L.M. Fletcher

Michigan judicial campaigns are down-ballot and nonpartisan but sometimes candidates reveal their ideological biases.

One Michigan Supreme Court candidate is a Republican member of the Michigan House of Representatives who recently made a speech in opposition to an amendment to the Michigan Indian Family Preservation Act. This candidate believes the Indian Child Welfare Act is unconstitutional because two members of the United States Supreme Court dissented in Haaland v. Brackeen. Dissents are not the law. He also made material misrepresentations about tribal membership rules and how the state law best interests of the child standard works in ICWA cases.

The other Michigan Supreme Court candidate has expressed her commitment to the rule of law. We like her lots.

Incidentally, the MIFPA amendment passed and is now law.

Alaska SCT Affirms ICWA Tribal Court Transfer over Foster Parents’ Objection

Matthew L.M. Fletcher

Here is the opinion in Rosalind M. v. State of Alaska:

sp-7718.pdfDownload

Arizona COA Issues ICWA Decision . . . And Its Not Great

Matthew L.M. Fletcher

Here is the opinion in In re Guardianship of A.K.

California SCT Issues Two Opinions Ordering Conditional Reversal under Cal-ICWA for Failure of the State Agency to Conduct an Adequate Inquiry on Whether the Child is Indian

Matthew L.M. Fletcher

Here is opinion in In re Dezi C.

Available briefs:

Calif Counties Assn Amicus Brief

California Appellate Defense Counsel Amicus Brief

Opening Brief

Reply

Here is the opinion in Kenneth D. that holds an appellate court may not consider postjudgment evidence to determine whether a trial court’s error was harmless.

Available briefs:

Petitioner’s Opening Brief

Answer Brief

Reply

Minnesota COA Rejects Equal Protection Challenge to ICWA/State ICWA

Matthew L.M. Fletcher

Here is the opinion in the Matter of the Welfare of the Children of L.K. and A.S.:

Opinion.pdfDownload

Available briefs:

Appellant Foster Parent Brief

Guardian ad Litem Brief

Minnesota AG Brief

Minnesota Tribes Amicus Brief

Tribal Orgs Amicus Brief

Red Lake Nation Brief

ACLU Amicus Brief

Mother Brief

Mother Reply

Foster Parent Reply

Michigan COA Decision on Standard of Review of Michigan Official’s Consent to Adoption of Indian Child

Matthew L.M. Fletcher

Here are the opinions in In re JCR:

Majority Opinion .pdfDownload
Concurring Opinion.pdfDownload

Daniel Rice on Civil Duties and Public Change

Matthew L.M. Fletcher

Daniel B. Rice has posted “Civil Duties and Public Change,” forthcoming in the California Law Review, on SSRN.

Here is the abstract:

What duties do Americans owe the state? Today, this question seems almost incomprehensible. Compulsions in the common interest are received coolly in our rights-obsessed culture, and the Supreme Court has never announced a framework for identifying the burdens of citizenship. Yet the concept of civic duty has played a central role in America’s constitutional tradition. From shoveling snow to repairing roads to fighting overseas, private individuals have long been forced to serve the public in ways menial and profound. Strangely, the discourse of obligation that legitimated numerous compulsions has largely faded from professional view. Judges’ mawkish tributes to liberty pay no heed to the magnitude of state-ordered servitude.

This collective forgetting has not eliminated the need to reason about civic duties, however. Courts continue to review compulsions grounded in contested visions of social obligation. In ruling on the Affordable Care Act’s individual mandate, for example, the Supreme Court seriously impeded Congress from implementing novel conceptions of civic duty. This hostility closely tracks a leading scholarly account of civic duties as fixed by historical tradition. According to this narrative, living Americans are powerless to alter the basic obligations of citizenship.

This Article corrects the historical record by documenting how civic duties have developed over time. The evidence reveals that these obligations are constantly in motion; society has constructed, reshaped, and discarded them in decades-long struggles over the meaning of freedom. Put simply, the duties of citizenship are not fixed features of our constitutional order. They are necessarily—and properly—responsive to moral and cultural change. These findings undercut the Court’s use of rigid historical methodologies for reviewing laws that tacitly presume the existence of duties owed to the public. Most prominently, abortion restrictions compel women to continue their pregnancies in service of state-defined goals. And a panoramic view of civic duties casts new light on congressional efforts to preserve Indian tribes as flourishing governments. The federal Indian Child Welfare Act draws conceptual support from compulsory education and military conscription, both of which have long prioritized communal survival over individual choice.

Tailyr Irvine

UConn Law Review Symposium — Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience [October 6, 2023]

Matthew L.M. Fletcher

Here:

The Connecticut Law Review invites you to their 2023 symposium: Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience The litigation that led to Haaland v. Brackeen threatened to take down not only the Indian Child Welfare Act, but vast swaths of federal Indian policy and federal law. Instead, the Supreme Court’s decision left ICWA unscathed and affirmed the constitutional relationship between tribal nations and the United States. But threats to Native families and tribal sovereignty continue. Native children continue to be removed from their communities by a market for adoptable children. A handful of states and interest groups continue to seek ways to challenge tribal authority and federal laws that support it. And because the Supreme Court held that the Brackeen plaintiffs lacked standing to raise their equal protection challenges to ICWA, those claims can be raised another day. Leading scholars, attorneys, and tribal leaders will explore these and other issues raised by the decision in this symposium.