Fort & Smith on ICWA During the Brackeen Years

Forthcoming in the Juvenile & Family Court Journal

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.

NCJFCJ ICWA Courts Publication

NCJFCJ has a cool new publication on ICWA courts, specifically the Duluth ICWA court which is (in my humble opinion) the national model for this work. Here is an older WaPo article on the court (one of the best mainstream press ICWA articles out there), and the publication is below.

New NCJFCJ Publication on Active Efforts


Congress passed the Indian Child Welfare Act (ICWA) in 1978 to address the widespread practice of state entities removing American Indian and Alaskan Native children from their homes and families. Congress found “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and that a high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”

This publication is a companion to others developed by the National Council of Juvenile and Family Court Judges (NCJFCJ) regarding ICWA for judges, court staff, attorneys, child welfare professionals, and other stakeholders involved in child welfare cases. It focuses on the use of active efforts as an essential tool in the implementation of ICWA and as a best practice in child welfare. It is intended to provide the history behind ICWA and, in doing so, outline both the why and the how of active efforts in ICWA implementation. 

Statement from the Expert Mechanism on the Rights of Indigenous Peoples on Child Separation at the Border


The United Nations Expert Mechanism on the Rights of Indigenous Peoples joins the concern expressed by the United Nations High Commissioner for Human Rights and others regarding the situation of families, children, and individuals being detained in the United States of America at its southern border with Mexico. We call on the United States immediately to reunite children, parents, and caregivers that have been separated to date, and to ensure their basic human rights to family, safety, and security.

In addition, the Expert Mechanism calls attention to the particular impact of the United States’ practices regarding international border detentions and prosecutions on indigenous peoples. Many of the individuals now being stopped at the border are of indigenous origin, including Kekchi, Tzutujil, Kacqchikel, and Mam-speakers and other Maya from Guatemala, as well as indigenous peoples from Honduras, El Salvador, Mexico, and other countries. In many instances, they are fleeing situations of economic, social, and political unrest in their homelands where they have been denied rights to self-determination and territory, and have faced discrimination and violence.

The Expert Mechanism expresses particular concern regarding the vulnerability of indigenous children. Many countries, including the United States, have a long history of forced removal of indigenous children from their families, a practice that is now universally condemned by the human rights communities and by federal law in the U.S. because of the trauma it causes to children, their families, and their communities.

More broadly, indigenous peoples, whether migrants or not, have rights under international
instruments including the UN Declaration on the Rights of Indigenous Peoples, supported by 148 nations across the world, including the United States. These include the right to maintain indigenous cultural identity, to be free from forced family separation, to speak their languages (and have translation services), to be free from discrimination and violence, and indeed to migrate. In some instances current international borders cross indigenous peoples’ homelands, including in the case of the Yaqui and Tohono O’odham people who have territory and family members on both side of the Mexico border. We call on the United States to recognize the particular situation of indigenous peoples in its border practices and policies and to uphold the rights and responsibilities set forth in the Declaration on the Rights of Indigenous Peoples.

Also, here is Mark Trahant’s piece, our previous post with NAICJA’s statement, and NCJFCJ’s statement (which went out on our Twitter feed but not here).

NAICJA Joins Forces with NCJFCJ

Link to Announcement: here

Boulder, CO: The National American Indian Court Judges Association (NAICJA) is pleased to announce that a Memorandum of Understanding (MOU) has been memorialized establishing a working relationship between NAICJA and the National Council of Juvenile and Family Court Judges (NCJFCJ). Importantly, the MOU provides for joint membership in the two organizations, allowing NAICJA members access to the resources of both national judicial membership organizations.

 Established in 1969, NAICJA is a non-profit corporation and the only membership association of tribal court judges and tribal court personnel in the nation. NAICJA’s current projects and goals are concerned with: advocating on behalf of tribal justice systems; securing necessary funding for tribal justice systems so they may continue to excel; providing education and training to tribal judiciaries; providing networking and mentorship opportunities for tribal judiciaries; and improving cooperation between tribal, state, and federal judiciaries.

 The NCJFCJ, established in 1937, is a non-profit corporation with a primary focus on improving juvenile and family court system practice in the handling of cases involving children, families, and victims of domestic violence. As one of the oldest judicial membership organizations in the nation, the NCJFCJ is unique as a leader in providing continuing education, technical assistance, research, and policy development in the field of juvenile and family justice. Among the myriad current NCJFCJ initiatives, several align closely with NAICJA’s projects and goals and hold promise for potential application and implementation in Indian Country, including: a national network of more than 100 juvenile and family courts that develop and test promising practice; the Juvenile Drug Court Training and Technical Assistance Project; the Resource Center on Domestic Violence: Child Protection and Custody; and the Family Court Enhancement Project.

 Beginning on June 1, 2016, new or renewing members of the NAICJA interested in joint membership will pay a $215 fee directly to NAICJA (existing NAICJA members should contact NAICJA directly for details on upgrading to a joint membership).

 NAICJA is excited to join forces with the NCJFCJ as the two organizations work to strengthen the functions and collaborative opportunities of state and tribal court systems, especially as they pertain to juvenile and family courts. NAICJA encourages its members to take advantage of the joint membership opportunity and the incredible resources available from the NCJFCJ.


Contact Information

Justice Richard Blake

President, Board of Directors

National American Indian Court Judges Association


BPhone: (303) 449-4112

MSU Law Webinar on Careers in Indian Law

Here. Geared toward current and prospective law students.

Attorneys with an understanding of Native American culture and legal issues are in high demand. Join us to learn more about the career paths of four Michigan State Law graduates who are working in Indian country. Each graduate will discuss the challenges and rewards of Indigenous Law work. Brief remarks regarding MSU Law’s Indigenous Law and Policy Center also will be offered. Following the presenters’ remarks will be a 15-minute Q and A session during which the presenters will answer questions from webinar participants.