Indian Child Welfare Act

Fletcher Draft Paper: “Federal Indian Law as Method”

Matthew L.M. Fletcher

Please check out “Federal Indian Law as Method,” likely forthcoming in the University of Colorado Law Review. Here is the abstract:

This Essay is written in the shadow of a series of noxious attacks on core principles of federal Indian law, most notoriously Haaland v. Brackeen, a challenge to the constitutionality of the Indian Child Welfare Act (ICWA). The Supreme Court did not reach the merits of the equal protection challenges, but during oral argument, several judges expressed skepticism that Congressional Indian affairs enactments that grant privileges or preferences to Indian people could survive scrutiny under an equal protection analysis. Justice Kavanaugh, one of the judges most interested in the equal protection claims, wrote separately to highlight these issues, asserting that “the equal protection issue is serious.”
The parties siding with ICWA’s constitutionality argued to the Court that the Mancari case is a guide, whereas the opponents to ICWA’s constitutionality wanted to Court to ignore the case altogether. This Essay is a full-throated defense of the Mancari as a method of constitutional interpretation. Not only is the Mancari method correct, it is also the only justifiable method. This Essay proceeds with a short background on federal Indian law and its default interpretative rules. Next, the Essay surveys the application of and challenges to the Mancari method. Finally, the Essay concludes with a comparison of the methods proposed to replace or displace the Mancari method.
This Essay was prepared for the 31st Annual Rothgerber Symposium at Colorado Law School.

Alex Pearl on ICWA in the Multiverse

Matthew L.M. Fletcher

M. Alexander Pearl has published “The Indian Child Welfare Act in the Multiverse” in the Michigan Law Review.

This Land Special Brackeen Decision Episode

Matthew L.M. Fletcher

Here.

Opinion here.

SCOTUS Affirms Constitutionality of ICWA 7-2

Matthew L.M. Fletcher

Here is the opinion in Haaland v. Brackeen.

More stuff here.

Skipped History Interview of Fletcher on ICWA and the Brackeen Case: “The “Surreal” SCOTUS Case on Indian Adoptions”

Matthew L.M. Fletcher

Here.

Apparently, I sometimes make this face when someone says “Yoda.”

NPR Code Switch Episode on ICWA (feat. Rebecca Nagle)

Matthew L.M. Fletcher

Indian Law Issue of the Journal of Appellate Practice and Process

Matthew L.M. Fletcher

Here:

The Journal of Appellate Practice and Process – Winter 2023 Issue Now Available

The Winter 2023 issue of The Journal of Appellate Practice and Process(Volume 22, Issue 1) is now available. This special issue focuses on appellate issues in and around Indian country. It features the following articles:

Jacob Jurss on ICWA and Brackeen

Matthew L.M. Fletcher

Here is “Counterpoint: Tribal rights, futures must not be plundered again” in the Minnesapolis Star-Tribune.

Neoshia Roemer on Un-Erasing American Indians and the Indian Child Welfare Act from Family Law

Matthew L.M. Fletcher

Neoshia Roemer has posted “Un-Erasing American Indians and the Indian Child Welfare Act from Family Law,” forthcoming in the Family Law Quarterly, on SSRN.

Here is the abstract:

In 1978, Congress enacted the Indian Child Welfare Act (ICWA) as a remedial measure to correct centuries-old policies that removed Indian children from their families and tribal communities at alarming rates. Since 1978, courts presiding over child custody matters around the country have applied ICWA. Over the last few decades, state legislatures, along with tribal community partners and advocates, have drafted and enacted state ICWA laws that bolster the federal ICWA laws. Despite four decades of ICWA, trends in child welfare demonstrate that Indian children are still vastly overrepresented in the child welfare system. Because tribal communities, advocates, community partnerships, and scholars work tirelessly to both ensure and improve ICWA compliance, ICWA still provides some of the best outcomes for Indian children through both family reunification and/or placement within their tribal communities.
However, family law often minimizes or mischaracterizes what the Act does. While ICWA is a complex law and even an entire semester may not fully provide justice to the breadth of the Act, this characterization of ICWA creates a stigma around the law. Family law scholars and practitioners can no longer overlook ICWA in conversations and teachings. Stigmatizing ICWA in the classroom contributes to the erasure of American Indians from our society at large and from our classrooms. This allows legitimized racism against this community to seep into both the classroom and the practice area.
Accordingly, this article discusses how family law classrooms can incorporate ICWA into conversations on family law as a step in eliminating bias in the legal academy and in the profession against American Indians. This article describes some of the history around ICWA, how family law feeds into the erasure of American Indians in the legal field, some misconceptions about ICWA, and how we can tie ICWA and other issues impacting American Indians into our classroom teachings on family law.