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.
There has been a small spate of Uniform Child Custody Jurisdiction Enforcement Act cases this year involving family law cases and tribal courts. In most states, tribes are considered “states” for the purposes of determining a child’s “home state” jurisdiction. These are generally (but not always) non-ICWA cases like parental custody and child support. These kind of cases seem rare to practitioners, but nationally there’s a fair number of them (and will continue to be the kind of reasoning tribal and state judges will need to engage in to as more and more cases arise in this subject area).
McGrathBressette (Michigan, child custody v. child protection)
MontanaLDC (Montana, child custody)
NevadaBlount (Nevada, third party custody)
(And yes, I have a pile of ICWA cases to share with you that have built up in the last month or so.)
The Washington Supreme Court has upheld a state law allowing tribal fee lands used for economic development projects to be exempt from state taxes provided that the tribe pays a payment in lieu of tax. (PILT). The case concerned Muckleshoot-owned lands and Muckleshoot filed an amicus brief in the case. Here is the opinion in City of Snoqualmie v. King County Executive Dow Constantine.
The majority and dissent opinions address when the argument as to Indian status must be raised in a state prosecution. State v. Hill
I have posted the data so far in chart form for my ongoing study on the impact of American Indian legal scholarship on the judiciary. The draft paper, which will be available on a limited basis at the Berkeley conference on Phil Frickey’s legacy, is called “American Indian Legal Scholarship and the Courts.” The data is available on SSRN here.
Here is the abstract for the appendices:
“American Indian Legal Scholarship and the Courts” is a forthcoming article that includes charts representing data on the citation patters of federal, state, and tribal courts to American Indian legal scholarship (defined as law review and similar publications focused on American Indian law). This paper includes three appendices in the form of simple charts that organize that data. Appendix 1 is a chart of Supreme Court opinions dating back to 1959 that include citations to Indian law review articles. Appendix 2 is a chart of law review articles cited in lower federal, state, and tribal courts since 1959, organized by article. Appendix 3 is the same chart reversed, with the chart organized by case first.
Barbara Atwood has just posted, “The Voice of the Indian Child: Enhancing the Indian Child Welfare Act through Children’s Participation” on SSRN.
From the abstract:
This essay explores the promise and challenge of giving more prominence to the child’s voice in ICWA proceedings in state courts. I identify legal sources of the child’s right of participation in statutory provisions, constitutional law, the UN Convention on the Rights of the Child, and tribal law. The Essay also explores the considerable challenges facing representatives for children who are the subect of ICWA proceedings. Using selected cases for illustration, I argue that incorporating children’s views in the ICWA calculus would move ICWA litigation toward a culture of respect for the dignity of each child and would enrich the decision-making of state court judges.
Michael Blumm, David Becker, and Joshua Smith (all of Lewis & Clark) just posted, “The Mirage of Indian Reserved Water Rights and Western Streamflow Restoration in the McCarran Amendment Era: A Promise Unfulfilled.”
ABSTRACT: Western state water law has been notorious for its
failure to protect streamflows. One potential means of providing
the missing balance in western water allocation has always been
Indian water rights, which are federal rights reserved from state
laws. These federal water rights normally have priority over
state-granted rights because they usually were created in the
19th century, well before most Western state water allocation
systems were even established.
Over two decades ago, in 1983, Justice William Brennan assured
Indian tribes that their reserved water rights would not be
compromised by subjecting them to state court adjudications under
the so-called McCarran Amendment, an appropriations rider given
expansive interpretation by the Supreme Court in the 1970s and
1980s. Justice Brennan’s belief that state courts – comprised
largely of elected judges – could treat tribal claims
evenhandedly, despite the high stakes and entrenched interests
involved in Western water rights adjudications, has never been
This study aims to begin to fill that gap by examining the
results of six Western water right adjudications – five of which
were decided by state courts – involving the Klamath, Wind,
Yakima, Gila, and Snake Rivers, as well as Pyramid Lake. The
results suggest that Justice Brennan’s optimism was quite
misplaced: in none of the cases studied did a court order
restoration of streamflows necessary to fulfill the purpose of
the tribe’s reservation. Instead, the state courts created a
number of new legal principles to limit or diminish tribal water
rights, in an apparent effort to reduce the displacement of
current water users.
The paper concludes that in the McCarran Amendment Era tribes
must resort to extrajudicial means of restoring streamflows
necessary to fulfill the purposes of their reservations. It shows
how some tribes have employed settlements – and even state law –
to achieve partial streamflow restoration, which is all that now
seems possible in an era in which their claims are usually judged
by skeptical state court judges who face reelections in which
entrenched water users exert considerable influence.