Lawyering the Indian Child Welfare Act

Matthew L.M. Fletcher* & Wenona T. Singel** June, 2022

This Article 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 when 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 Article is to help expose those structural issues and the ethically troublesome practices of adoption attorneys as the most important Indian Child Welfare Act (ICWA) case in history, Brackeen v. Haaland, reaches the Supreme Court.

Introduction

Several years ago, the United States Supreme Court decided Adoptive Couple v. Baby Girl, an emotional, passionately litigated dispute between a Cherokee father and a non-Indian adoptive couple over who would be allowed to raise the Cherokee father’s biological child.¹ The opening paragraph of the opinion betrayed the Court’s prejudices by referring to the non-Indian family as the “only parents” the child had ever known.² One would not know from reading the opinion that the Indian child had been living with their Cherokee father and extended family for over a year.³ But for Justice Alito, the author of the majority opinion, the “only parents” the child ever knew were the non-Indian adoptive couple. Counsel arguing against the Cherokee family had framed their client as the “only family” since the case’s inception, demonizing their opponents.⁴ Needless to say, it worked. The Indian parent—and the statute he used to protect his family—became irrelevant.

This “only family” claim represents, in a nutshell, the powerful forces arrayed against Indian families and tribes who attempt to invoke the Indian Child Welfare Act (ICWA).⁵ In the hotly contested, tragic atmosphere of Indian child welfare, all too often, the side who presents the most compelling emotional case prevails. The robust federal protections available to prevent the breakup of Indian families sometimes work to the disadvantage of good, non-Indian parents. Too often in family law, as in Indian law, the law does not matter. When emotion prevails over law, lawyering matters a great deal—in particular, control over the narrative of a case involving ICWA practically predetermines the outcome.

This Article 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 when 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 Article 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.⁶

Part I briefly surveys the history of Indian lawyering. Part II then describes modern Indian lawyering, with an eye toward civil rights and child welfare lawyering. Part III delves into the ICWA itself, offering a historical and legal backdrop for the Act. Part IV surveys the constitutional challenges to the ICWA that have arisen in the Brackeen suit. Part V concludes by arguing that the structural issues permeating Indian lawyering have made the ICWA an especially vulnerable statute in the Supreme Court. Those structural issues may have skewed the strategic defense of the ICWA, further threatening the law and Indian families.

I. A Brief History of Indian Lawyering

Professor Kate Fort recently told us about a rule of thumb that lawyers who work on Indian child welfare cases in state court—lawyers trained first in Indian law and then later in family law—are surprised at how quickly the factual narrative of a case can derail a legal strategy; those trained first in family law know that facts in child welfare cases are outcome determinative. Like Professor Fort, we were first trained in federal Indian law and tribal law. We therefore start this Article on lawyering with Indian law.⁷

Lawyering for individual American Indians and Indian tribes can be very strange.⁸ Federal laws permeate much of Indian law and policy. Indian lawyering is no different. For example, there is a little-known federal law that provides that the Department of Justice “shall” represent Indians “in all suits at law and in equity.”⁹ Naturally, this provision has been interpreted in all but one reported case to be unenforceable by Indians against the United States.¹⁰ Even stranger, until the beginning of this century, federal law required tribes to seek permission from the federal government to hire lawyers; it provided that “the choice of counsel and fixing of fees” was “subject to the approval of the Secretary [of the Interior].”¹¹ The federal government sometimes employed its approval power to quash tribal claims against the government.¹² Nowadays, as a practical matter, these laws have little impact on Indian lawyering, but they skewed the field for generations.

Civil rights lawyering for Indians is also strange in that many claims are brought by tribes rather than individual Indians. Indian tribes are collectives, after all, and tribal governments often possess interests that overlap with the interests of individual tribal members. Perhaps the best example of this phenomenon involves treaty rights to hunt and fish. The tribe is the signatory to the treaty and the possessor of the right,¹³ but state and local governments violating the treaty right do so by regulating or prosecuting individual Indians.¹⁴ Similar examples include tax¹⁵ and jurisdictional¹⁶ disputes, where the tribes often step in to litigate on their own behalf, which usually benefits individual tribal members. These are often enormous disputes, the types of Indian law cases that reach the United States Supreme Court.

Individual Indians bring civil rights claims, too, but these claims definitionally differ from tribal rights claims and rarely reach the Supreme Court.¹⁷ These claims tend to involve voting rights claims against state governments¹⁸ or claims against tribal governments.¹⁹ Section 1983 claims by Indian people tend to involve prisoner rights.²⁰ Civil rights claims by individual Indians tend to be subsumed into claims brought by tribes as noted above or, in some instances, raised by tribes acting as parens patriae on behalf of individual Indians.²¹

Until the 1970s, virtually all lawyers who represented Indian tribes were either actual federal government attorneys or private lawyers primarily financed by federal dollars.²² The primary federal statute governing Indian lawyering was Section 16 of the Indian Reorganization Act, which granted broad powers to the federal government to oversee the tribal retention of lawyers.²³ The statute provided for the federal government’s mandatory defense of tribal property interests.²⁴ In 1946, Congress created the Indian Claims Commission,²⁵ which provided an additional avenue for attorney representation of Indian tribes.²⁶

Since the 1970s—the beginning decade of the current era of self-determination—Congress has acknowledged and enabled the power of tribes to govern themselves.²⁷ For most tribes, Congress appropriates a certain amount of funding.²⁸ Relevant federal agencies (most often the Bureau of Indian Affairs and the Indian Health Service) pass that funding on to tribes, who have significant discretion on how to allocate those funds through self-determination and self-governance contracts.²⁹ Tribes with other revenue sources, usually gaming or natural resource extraction money, supplement federal money in that way.³⁰ Tribal attorneys are often funded with a combination of federal and tribal dollars.³¹

In 2001, tribal leaders formed the Tribal Supreme Court Project after a decade or more of failures before the Court.³² Prior to that time, tribal attorneys, boutique Indian law firms, and law professors usually represented tribal interests in high-profile Indian law cases.³³ Now it is common for members of the “Supreme Court bar,” such as Neal Katyal, Carter Phillips, and others, to represent tribes.³⁴ Those in opposition to tribes, notably states and corporations, are also represented by this cadre of lawyers. Indian lawyering has changed much in the past few years. We now turn to a description of lawyering in Indian child welfare cases.

II. Lawyering Indian Child Welfare Cases

Far and away, the majority of civil rights cases involving Indians and tribes arise under the ICWA.³⁵ Weirdly, few observers think of these cases as civil rights actions. The ICWA is the most important federal civil rights statute enacted by Congress to protect Indians and tribes specifically. Congress found that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”³⁶ Congress was also “alarm[ed]”³⁷ to find that 25 to 35 percent of Indian children had been removed from their homes by state courts, state agencies, and private entities.³⁸ Due process was virtually nonexistent for Indian parents and custodians; for example, states rarely afforded counsel to indigent parents.³⁹ Congress exercised its power through the ICWA to enhance the individual rights of Indian people⁴⁰ and the rights of Indian tribes.⁴¹

However, as Part III details, the ICWA can be very difficult to enforce.⁴² The ICWA requires state actors to do more to rehabilitate Indian parents and reunify Indian families than state law requires normally.⁴³ Many state actors simply do not comply with or enforce the ICWA due to ignorance or overt opposition.⁴⁴ Further, many state actors object to federal obligations in areas the states believe (in this case, erroneously) are states’ rights issues.⁴⁵ And many adoption agencies fight fervently in opposition to the ICWA’s provisions that make it harder for non-Indians to adopt Indian children.⁴⁶ Four decades since the ICWA’s enactment, outlier states and adoptive families have coalesced their objections to the ICWA’s constitutionality in Brackeen v. Haaland,⁴⁷ the massive federal lawsuit pending before the Supreme Court that has the potential to upset the foundations of federal Indian law forever. If the challengers prevail on their equal protection claims, for example, then the federal laws establishing Indian country criminal jurisdiction are likely next to fall.⁴⁸

Moreover, there are a lot of lawyers involved in child welfare proceedings. These proceedings are complicated by the sheer number of parties that are (or should be) individually represented by counsel: the government,⁴⁹ each parent or guardian,⁵⁰ and each child are entitled to counsel.⁵¹ Persons that have moved to adopt are also likely to be represented by counsel.⁵² ICWA proceedings in state court can include the tribe as a party as well.⁵³ Unlike many other civil rights statutes, the ICWA does not allow for prevailing civil rights claimants to seek attorney fees, but it does allow states to seek funding for the appointment of counsel from the federal government.⁵⁴ There is no provision for funding tribal counsel.⁵⁵

Additionally, structural matters in child welfare cases generally, and the ICWA specifically, complicate efforts to enforce the ICWA. For example, determining which order in an ICWA case is an appealable final order can be particularly difficult. Would a temporary placement order that violates § 1915(b)’s foster care placement preferences be appealable?⁵⁶ What about a disposition order after adjudication that makes an active effort finding under § 1912?⁵⁷ An order before adjudication denying transfer to tribal court?⁵⁸ The lack of attorney fees and difficult appellate positions are structural issues that make it even more difficult to enforce the ICWA.

Modern, twenty-first century Indian lawyering is a dynamic and complex mix of governmental and private lawyering. This Part describes the primary categories of Indian lawyers and their respective roles in civil rights lawyering for Indian families.⁵⁹

A. Tribal General Counsel

In-house counsel for Indian tribes potentially have several important roles in civil rights lawyering affecting Indian families. Because tribal in-house counsel represent Indian tribes, and because tribes may be parties to Indian child welfare matters in state and tribal courts,⁶⁰ the tribes’ attorneys are often but not always important. Their importance comes in managing the tribes’ interests in ICWA cases and overseeing any appellate work that stems from those cases.

There are 574 federally acknowledged Indian tribes, and many of them employ in-house counsel.⁶¹ General counsel for smaller tribes tend to be generalists.⁶² They deal with all internal tribal matters, everything from tribal constitutional questions to tribal economic development.⁶³ Very small tribes, both in terms of citizenry or land base, are far less likely to retain in-house counsel.⁶⁴ Those tribes often retain lawyers from law firms to serve as counsel for the tribe.

Larger tribes tend to employ much larger numbers of lawyers in-house.⁶⁵ These larger tribes also tend to divide in-house counsel into more specialized offices. The Navajo Nation, the largest tribe in terms of members and land, employs dozens of lawyers in numerous specialized offices.⁶⁶ The tribe is the client for most in-house counsel, although in-house counsel might be retained separately by the executive or legislative branches of government.⁶⁷ In some very small tribes, however, general counsel might do it all. They might litigate in state, federal, and tribal courts⁶⁸ or serve as tribal prosecutors and tribal presenting officers in Indian child welfare matters.⁶⁹ They might also be the lead attorney in both governmental and commercial matters.⁷⁰

Though they work in vastly different legal worlds, the role of tribal general counsel is not much different from that of corporate general counsel. Indian tribes are governments but are usually organized along corporate lines.⁷¹ Indian tribes also own corporate entities.⁷² There is a lot of corporate work for tribal general counsel to do. That said, tribal counsel roles often change dramatically depending on the governing practices of the elected officials. Yet, it is fair to say that tribal general counsel do not litigate much.⁷³ It is primarily a transactional job; most days, in-house counsel review contracts and draft tribal legislation. For example, Singel served as the general counsel for the Grand Traverse Resort after the Grand Traverse Band purchased it in 2003.⁷⁴ Singel reviewed contracts, guided the merger of the resort into the tribal enterprise’s portfolio, and dealt with state law implications of a tribe-owned resort.

In terms of civil rights lawyering, tribal general counsel are not often directly involved. However, when they are, they are usually on the defensive, representing a branch of the tribal government or a tribal official or employer.⁷⁵ On rare occasions, the tribal client might ask tribal general counsel to represent an individual tribal member in a civil rights matter. The Grand Traverse Band tribal council once asked Fletcher to assist outside counsel in defending a tort claim brought against a tribal member who was sued in state court over treaty fishing.

Tribal general counsel are more likely to be involved in Indian child welfare matters, either in state court or tribal court. This is especially true where the tribe has limited resources and does not staff a separate office to handle child welfare matters, although some larger tribes dedicate an attorney in the general counsel’s office to handle those types of cases.⁷⁶ The potential for conflicts of interest is high, though. For example, it is unusually likely for tribal-elected officials, who speak for the tribal client, to be biologically related to the individual tribal members who are parties in those cases.

As noted above, tribal general counsel usually do not litigate. Tribes generally retain specialists to handle complex federal and state court cases. In our experience, outside counsel dealt with a number of cases in federal and state courts for our tribal client while we worked in-house on other matters. Examples included the previously mentioned Turtle Creek Casino litigation⁷⁷ and a case involving the Hoopa Valley Tribe’s effort to regulate nonmember logging activities.⁷⁸ Normally, in a corporate environment, the general counsel’s office manages the selection and oversight of outside counsel brought in to handle litigation or whatever matter is at hand. Even in a state or local governmental situation, governmental attorneys strictly manage outside counsel.

Often, and unfortunately, this is where tribal general counsel and corporate general counsel deviate. In the retention of outside counsel, many tribal general counsel offices have no role.⁷⁹ Unlike states or corporations, very few tribes follow a bidding or procurement policy governing the retention of outside counsel. The reality is that in many, if not most, tribal governments, outside counsel are retained by elected officials without much input from the tribal general counsel’s office. Additionally, in-house counsel often do not have a role in managing or overseeing outside counsel.⁸⁰ Law firms that practice in Indian country know this and exploit it.⁸¹

Not all tribes are like that. However, enough of them are that the situation places in-house counsel in near-impossible situations when the tribal client may soon be facing high-stakes litigation with the potential to reach the Supreme Court.

B. Tribal Prosecutors, Presenting Officers, and Others

Tribal governments also retain attorneys to represent the tribe or a branch of tribal government in more specific areas, such as criminal justice, health, and housing. For purposes of this Article, we mean to include prosecutors and presenting officers in child welfare matters. Tribal prosecutors and presenting officers are most likely to represent the tribes’ interests in Indian child welfare matters in state and tribal courts.⁸²

Indian tribes possess law enforcement authority over all Indians within their Indian country,⁸³ although not all tribes exercise that authority. Tribal prosecutors serve as the chief law enforcement officer for the tribe and retain significant discretion over enforcement.⁸⁴ Tribal prosecutors might also serve as presenting officers in child welfare matters.⁸⁵ Some tribes have created a child welfare commission of appointed tribal community members to advise these officers.⁸⁶

Serving as prosecutors or presenting officers is often a thankless task. They are obligated to charge Indian people with crimes, to seek removal of Indian children from their homes, and to terminate (or its equivalent) the parental or custodial rights of Indian people. These are intensely difficult decisions, which can lead to these lawyers becoming unpopular quickly. Turnover and burnout are endemic,⁸⁷ though some tribal prosecutors and presenting officers are retained for many years.

Prosecutors and presiding officers focus almost exclusively on trial-level work, primarily because there are relatively few appeals. In tribal court, they advise the child welfare investigators and file the petitions for removal, if any, on behalf of the tribal client. In Indian child welfare situations, the tribal prosecutor or presiding officer may represent the social services agency,⁸⁸ but many, many tribes rely on non-lawyer “ICWA workers” to represent the tribes’ interests in state court.⁸⁹ In state court, they represent the tribe’s interests under the ICWA on matters such as whether to intervene, whether to seek transfer of a case to tribal court, and so on. It is rare to find tribal prosecutors and presiding officers with significant appellate experience.

C. Defenders, Legal Services Lawyers, and Law School Clinics

As should be expected, tribal public defenders and legal services lawyers play enormous roles in Indian country civil rights lawyering. And, to a somewhat lesser extent, these lawyers play important roles in Indian child welfare proceedings. Because these lawyers usually represent Indian parents or custodians, we refer to them as “parents’ attorneys” throughout this Article.

In many parts of Indian country, regional legal services agencies represent Indian parents and custodians in state and tribal court child welfare proceedings.⁹⁰ Indian legal services originated during the Johnson-era War on Poverty with the creation of the Office of Economic Opportunity.⁹¹ On occasion, tribal public defenders will be called to represent parents and custodians.⁹² Law school clinicians also occasionally represent Indian parents and custodians.⁹³ And many other times, tribal courts appoint private counsel to represent parents and custodians.⁹⁴ It is our understanding that all of the lower peninsula Michigan tribes that manage child welfare cases in their dockets appoint counsel to represent parents who are not already represented by legal services or another attorney.⁹⁵

In state court, where compliance with the ICWA is often low to nonexistent, parents’ attorneys and tribal attorneys sometimes work in tandem in their efforts to enforce the ICWA.⁹⁶ However, parents’ and tribes’ interests may quickly deviate if the tribe concurs with the state to remove an Indian child from their home. In tribal court, where tribal law applies, parents and tribes are adverse since the tribe is the government filing petitions against the Indian parents.

Parents’ attorneys, who work at the trial level, like tribal prosecutors and presenting officers, are unlikely to have much appellate litigation expertise. However, some legal services attorneys and most law school clinicians have significant appellate expertise.

D. Outside Litigation Firms

While governmental and legal services attorneys permeate trial-level civil rights work arising in Indian country, private law firms tend to predominate in appellate work. Tribal in-house counsel, who tend to represent the tribal governmental defendant in such cases, might handle trial-level civil rights work in tribal courts, but they largely turn over that work to outside law firms, especially when the cases reach the appellate level.⁹⁷ Complex litigation specialists are typically based in law firms that can manage difficult and large cases. Some Indian tribes can readily afford the costly fees. And even tribes with severely limited resources might still feel compelled to retain specialized litigation counsel. On occasion, especially if an Indian law case might reach (or already has reached) the Supreme Court, a firm with a Supreme Court practice group might take the case pro bono or at a reduced fee. Finally, in many civil rights cases, courts award the prevailing parties attorney fees, making such cases more attractive to for-profit firms.

As we discuss in more detail below, law firms are rarely involved in Indian child welfare matters. There are no attorney fee award statutes, and Indian families in the child welfare system have no resources. Indian tribes usually do not expect to spend their limited resources on outside counsel to litigate Indian child welfare matters.

E. Public Interest Litigation Organizations

There are also several nonprofit organizations that litigate complex civil rights cases arising in Indian country. Most famously, the Native American Rights Fund (NARF) has represented Indian tribes and individual Indians since the early 1970s.⁹⁸ A few other nonprofits have represented Indians and tribes during that time as well. In recent decades, nonprofits tied to movement conservatism and corporate interests have begun to represent non-Indian persons and entities in opposition to tribal interests.⁹⁹

The nonprofit litigation groups that represent Indians and tribes in civil rights cases depend on donations and attorney fee award statutes to fund their work.¹⁰⁰ That means their work involves a lot of voting rights cases, environmental protection cases, and even some prisoner cases.¹⁰¹ If a claim does not result in a potential attorney fee award, non-profits will be forced to take on litigation costs, often an insurmountable burden.

On the other hand, the nonprofits that oppose Indian and tribal interests are often nationally prominent and extraordinarily well funded.¹⁰² Powerful and wealthy interests that seek to eliminate government regulation of polluters, for example, are behind these groups. They have brought claims on behalf of (or defended) industry groups, private property owners, and others who oppose Indian and tribal interests.¹⁰³ In recent years, these groups have embarked on a litigation strategy to eliminate the ICWA.¹⁰⁴ Ironically, these groups—who did not previously advocate for children at all—claim to be defending the rights of Indian children from those children’s own biological families.¹⁰⁵

So far, given the structural disadvantages plaguing tribal governments and Indian families, this cynical strategy is working, as the next Part will show.

III. The Indian Child Welfare Act

The Indian Child Welfare Act, or the ICWA, is likely the most comprehensive and far-reaching, acutely needed, and successful civil rights law that Congress has ever enacted in the history of Indian affairs. In 1978, Congress found that states had removed about one-third of all Indian children from their homes and placed nearly all of them in non-Indian homes without even the barest pretense of due process for Indian parents and custodians.¹⁰⁶

Congress enacted the ICWA by quoting the Indian Commerce Clause, its “plenary power over Indian affairs,” and “other constitutional authority.”¹⁰⁷ In the ICWA, Congress announced a national policy that remains incredibly ambitious, aspirational, and progressive. Congress spoke of minimum national standards, efforts to support stable Indian families, and the need to prioritize Indian values and culture.¹⁰⁸

A. Overview of the Act

The ICWA is primarily a procedural statute, although Congress did impose several substantive requirements on state child welfare matters designed to ensure greater protection for Indian families. At bottom, Congress never intended for the ICWA to be a comprehensive statute; rather, it was enacted to provide a baseline. As a result, state child welfare laws will mostly still apply in Indian child welfare matters. Congress did provide an interpretive guide, though: in the event that the ICWA provides greater protection for the Indian family, the ICWA must be followed, but if state law provides greater protections, state law must be followed.¹⁰⁹

Core to the ICWA is tribal jurisdiction over children who are tribal members or eligible for membership.¹¹⁰ If the child is domiciled on an Indian reservation, tribal jurisdiction is exclusive.¹¹¹ That rule is similar to a pre-ICWA Supreme Court decision, Fisher v. District Court,¹¹² which stripped state courts of jurisdiction over Indian child custody matters arising in Indian country. When the child is not domiciled on the reservation, then the state court presumptively must transfer the case to tribal court if the tribe petitions for transfer, with limited exceptions.¹¹³ The ICWA makes Indian tribes parties to Indian child welfare proceedings in state courts regardless.¹¹⁴ These provisions add significant teeth to Congress’ mandate to states to allow tribes to assert their interest in their own children.

The ICWA provides minimum procedural protections for Indian custodians and tribes. Indian parents cannot consent to the termination of their parental rights outside of the presence of a judge.¹¹⁵ States must comply with specific notice provisions for Indian parents, custodians, and tribes.¹¹⁶ States must also provide counsel for indigent parents and custodians.¹¹⁷ At the time of the ICWA’s enactment, states rarely afforded basic procedural protections to Indian families.¹¹⁸ State agencies and law enforcement routinely coerced Indian families into consenting to the removal and to the termination of their custodial rights at the time of the removal.¹¹⁹ If there was a formal removal hearing before a judge, the courts rarely gave notice about the hearing to Indian families. And if they did appear at a hearing, state courts would not allow them to testify, present evidence, confront witnesses, or even see the affidavits presented to the court.¹²⁰ Of course, the states did not offer Indian parents the right to counsel, and their tribes were never involved.

The ICWA’s substantive requirements include higher burdens of proof to terminate the parental rights of Indian parents and custodians.¹²¹ State courts may not terminate parental rights without the testimony of a witness qualified to understand and explain to the court the child-rearing practices of the tribe to which the child and parents belong.¹²² State courts must give preference in foster care placement and adoption to biological relatives, members of the same tribe as the family, and other Indians before granting placement with non-Indians.¹²³ States must also take “active efforts” to reunify the Indian family prior to termination.¹²⁴ Prior to the ICWA (and now, frankly), state social workers and judges applied a white, nuclear family standard to Indian families.¹²⁵ State agencies overtly discriminated against Indian families, sometimes even adopting policies that treated any Indian child living on a reservation as automatically being in a state of neglect, justifying removal.¹²⁶ Prior to the ICWA, Congress found that states’ removal of Indian children was “wholesale.”¹²⁷

The ICWA was the first time Congress adopted standards governing child welfare. Most states did not provide many (or any) of the protections required in the ICWA to any child, let alone Indian children.¹²⁸ Within a few decades after the ICWA’s enactment, state legislatures greatly enhanced due process protections for all children.¹²⁹ However, states continue to lag, for example, in providing active efforts to support the reunification of families.¹³⁰ Tribes usually are far more progressive than states in seeking reunification.¹³¹

Worse, in some jurisdictions in the United States, the percentages of Indian children being removed by states have not changed much for the better;¹³² indeed, bias abounds.¹³³ The ICWA did not solve the ravages of poverty nor did the ICWA solve the perception of most Americans that poverty is the equivalent of neglect.¹³⁴ The law has had one generation to change generations of trauma,¹³⁵ but there is so much more work to be done. And the ICWA is critical to that work for Indian families; compliance with it is closely associated with better outcomes for Indian children.¹³⁶

B. Realism in Lawyering Indian Child Welfare Matters

Since the ICWA is not a comprehensive child welfare law, there are several critical gaps in the law and ambitious provisions open to interpretation. And because state courts exercise incredible discretion that is infrequently reviewable by an appellate court,¹³⁷ the ICWA is vulnerable to manipulation by the parties that oppose its application. Parties in an Indian child welfare matter that come to the proceeding intending to undercut the ICWA’s protections for Indian parents and custodians possess almost unstoppable advantages at virtually every step. Indeed, “[b]ecause [the] ICWA is a federal statute enforced by the states, tribes are in a particularly vulnerable position when information about their children is dependent on the actions of state social workers.”¹³⁸ It is sadly not unusual when a party attempts to defraud a court in order to avoid the application of the ICWA.¹³⁹

For example, consider an emergency removal matter where the state removes an Indian child from their home.¹⁴⁰ The state will frequently place the child with foster parents,¹⁴¹ perhaps because of ethnocentric bias of the worker or the foster care licensing process.¹⁴² At that first emergency removal hearing, the court must determine whether there is any reason to know the child is an Indian child under the ICWA.¹⁴³ It is here where states first and most routinely fail to comply with the ICWA.¹⁴⁴ Failure to notify the tribe means that the tribe’s interests under the ICWA will not be heard. If the tribe doesn’t know about a case, it cannot intervene or offer useful resources to the Indian parents and their children.¹⁴⁵ If it does not intervene, the tribe cannot participate in the court hearings where it could seek transfer to tribal court or demand compliance with the ICWA’s procedural and substantive rules.

If the tribe does not intervene, courts naturally consider the case not to fall under the ICWA. However, if a tribe is notified, it might decide not to seek transfer to tribal court if the state agency represents to the tribe that it will comply with the ICWA or not seek termination of parental rights, for example.¹⁴⁶ The tribe’s decision not to transfer stems from its believe that reunification will happen or because the tribe’s court is geographically distant from the parents.¹⁴⁷ Later on, perhaps months or years later, if the tribe finds that the state is not fulfilling its promises, then it has no recourse as a practical matter. Even if the tribe appeals, which could lead to the tribe prevailing on the notice issue months or years later, the remedy is to remand for compliance with the ICWA, further delaying a permanent placement for the Indian child.¹⁴⁸

States often do not comply with the notice requirements to tribes.¹⁴⁹ And many state courts drag their feet in transferring cases to tribal courts.¹⁵⁰ Private adoption agencies and their attorneys, as their allies in the children’s bar, can be relentless—and unethical—in fighting the application of the ICWA to Indian children they are trying to adopt out to non-Indian families.¹⁵¹ Rebecca Nagle’s This Land podcast played a tape of Jay McCarthy, a prominent adoption attorney who claims to specialize in the adoption of Indian children, advising his non-Indian clients that the ICWA does not require notice to tribes of private adoption petitions; his advice was exactly wrong.¹⁵² Enforcement of the ICWA at the trial level can depend entirely on the choices (even whims) of the trial judge, on whether the tribe chooses to intervene or seek transfer in the case, and on whether the state provides the tribe timely notice at all.

Indian parents also lose when the tribe is not involved.¹⁵³ Although the tribe’s interests and the Indian parents’ interests do not always align, they do align in many state court cases because they share the same procedural rights.¹⁵⁴ That often means that if the tribe is not notified, the Indian parents’ rights under the ICWA are less likely to be enforced. Parents’ attorneys are too frequently unaware of the benefits of learning and invoking the ICWA on behalf of their clients. It is important for tribes and parents’ counsel to work together to the extent that they can. If the tribe is not involved, Indian parents are almost always on their own.

Foster parents are not usually parties to a child welfare matter, but their involvement can be deeply impactful. There is a good chance the foster parents came to the foster care system intending to permanently adopt children (almost always infant babies); they are often called “foster-to-adopt” families.¹⁵⁵ Adoption agency representatives regularly encourage families to go this route. However, this is not a real thing as a matter of law.¹⁵⁶ The “foster-to-adopt” strategy does not vest rights in those parents, but foster-to-adopt families too often do not understand this even when they are warned.¹⁵⁷ Congress’s mandate in the ICWA (and of state legislatures under state law) to reunify the family typically becomes secondary to the wishes of the foster-to-adopt family.¹⁵⁸ The same is true under state law.¹⁵⁹ From that point on, every discretionary state action is a chance to benefit the foster-to-adopt family. Initial emergency foster care placements likely last for a few months, but they could also last years. During that time, foster-to-adopt families, usually enabled by state workers and judges,¹⁶⁰ emotionally attach themselves to the Indian child.¹⁶¹ They bide time until the moment they believe is inevitable, based on the representations of the state workers and adoption agency counsel, that they will be able to adopt the child. State workers and judges usually see potential adoptive parents as worthy of support, especially if they view them as the “only family” of the foster child.¹⁶² Additionally, the foster-to-adopt family can send a child back if they decide for whatever reason they do not want the child, hoping for a different child instead.¹⁶³

The underlying racism of the foster care system is well documented,¹⁶⁴ and we have seen it first-hand in our work. It is well established, given the history of colonization of Indigenous peoples in America, that the state workers, foster-to-adopt families, and children’s attorneys demonize the Indian parents and custodians during the fostering process.¹⁶⁵ The parents almost always suffer from abject poverty and the resulting mental health issues and additional problems. The longer the fostering period, the greater the intensity of foster-to-adopt families’ desire to adopt. That intensity often leads foster-to-adopt families to employ desperate, adversarial actions designed to protect their status and undermine the chance for Indian families to be reunified. Likely advised by adoption attorneys, foster-to-adopt parents occasionally employ social media tools and, in extreme circumstances, take their cases to shows like Dr. Phil.¹⁶⁶

The end goal of foster care is the reunification of the family, but the reality of the child welfare system is that the state will frequently move to terminate parental rights.¹⁶⁷ Under state child welfare systems, states do not have to provide the “active efforts” that are required under the ICWA for Indian parents and custodians.¹⁶⁸ The Adoption and Safe Families Act required states to seek termination of parental rights as soon as fifteen months after removal,¹⁶⁹ regardless of whether the parents have had much of a chance to rehabilitate themselves. Less than half (47 percent) of families are reunified.¹⁷⁰ Numerous states have been hauled into court to respond to state-wide civil rights claims about physical, sexual, and emotional abuse of their foster children, so we know many states have terrible foster care systems.¹⁷¹

Prior to the termination of the rights of Indian parents or custodians, the tribe (if it has been noticed and has intervened) might consent to the foster care placement pending the outcome of the reunification process.¹⁷² Keep in mind that during these many months, a foster-to-adopt family is waiting out the clock. Once the state moves to terminate parental rights, the process usually turns its focus to looking for a permanent placement. Typically, the foster-to-adopt parents will file a petition to adopt, but the tribe might want to bring that child home and place the child with their relatives or other tribe members, which then leads to a contested adoption proceeding. If the state placed an Indian child with a non-Indian family early enough in the child’s life, we often see the foster-to-adopt families and their counsel employ the “only family” argument to demonize Indian families, Indian tribes, and the ICWA.¹⁷³ And it almost always works. Child welfare cases rarely go up on appeal until the court terminates the parents’ rights.¹⁷⁴ By the time the parents or the tribe seeks to appeal, all the damage is done; it is usually too late.

Despite the reality that non-Indian adoptive parents usually prevail over Indian parents and tribes, ICWA’s opponents want the ICWA gone completely. In the past decade, nonprofit organizations dedicated to the eradication of civil rights laws designed to protect underprivileged minorities have argued that the ICWA is unconstitutional.¹⁷⁵ Since no federal court had ever held that the ICWA was unconstitutional on any ground, these anti-ICWA advocates applied a shotgun strategy. Part IV describes their various arguments.

IV. The Constitutional Challenges to the ICWA

Congress possesses plenary power in Indian affairs.¹⁷⁶ That power derives from several sources that work alone and in conjunction with each other. First, the Commerce Clause delegates Congress power over commerce with Indian tribes.¹⁷⁷ Second, the Treaty Power extends federal powers over Indian affairs where the United States agreed to take Indian tribes under its duty of protection, or what we usually now refer to as the “trust relationship.”¹⁷⁸ Third, the duty of protection itself, the existence of which is implied by the structure of the Constitution, is a source of federal powers.¹⁷⁹ Fourth, the Supremacy Clause ensures that any federal laws enacted concerning Indian affairs preempt contrary state laws.¹⁸⁰ Fifth, the Property and Territory Clause grants Congress plenary powers over the lands owned by the United States in trust for the benefit of Indians and tribes.¹⁸¹ Sixth, the earliest federal statutes enacted in Indian affairs, the Trade and Intercourse Acts, completely preempted the field of Indian affairs by prohibiting anyone not licensed as a representative of the federal government from engaging in trade or intercourse with Indian tribes.¹⁸² Finally, the Supreme Court has even held that Congress possesses powers in Indian affairs that predate the Constitution.¹⁸³

A. Congressional Authority Under the Commerce Clause

ICWA opponents claim that the Commerce Clause was an insufficient source of authority for Congress to enact the law.¹⁸⁴ This argument derives partly from the exceptionally poor historical scholarship by Robert Natelson, who was cited extensively in Justice Thomas’s concurring opinion in Adoptive Couple. Greg Ablavksy eviscerated Natelson’s scholarship, pointing out that his key source was misquoted and his overall historical research was deeply flawed.¹⁸⁵ The argument only makes the remotest semblance of sense if one starts from the proposition that congressional authority under the Constitution is limited to the exact terms of the Constitution. In Indian affairs, Indian tribes are mentioned in the Commerce Clause.¹⁸⁶ Therefore, in this world created by racial gaslighting,¹⁸⁷ Congress may only regulate commerce and nothing else. As Indian child welfare is not commerce,¹⁸⁸ ICWA opponents see no congressional authority.

They are wrong, and every court has so held. Even if we take commerce out of the plenary powers equation, the United States possesses a duty of protection for every federally acknowledged Indian tribe. That duty of protection not only enables Congress to act to protect Indian people, including Indian children, it obligates Congress to act. As we wrote a few years back, the United States has interfered with the lives of Indian families since the Founding.¹⁸⁹ The United States took Indian children hostage during the Indian wars.¹⁹⁰ It also took Indian children from their homes and placed them in military and religious boarding schools.¹⁹¹ Even more, the federal government—and states—placed Indian children in non-Indian homes.¹⁹² While each of those examples is likely unconstitutional under the Fifth and Fourteenth Amendments, congressional plenary power to take those actions was never questioned by the Supreme Court.¹⁹³ In 1978, Congress chose to protect Indian families through the enactment of the ICWA.¹⁹⁴ Given this long history, congressional power to carry out that remedial action obviously should not be questioned.

B. Equal Protection

Congress possesses the power to enact Indian affairs statutes that create classifications based on Indian status.¹⁹⁵ So long as the classification is rationally related to the federal government’s fulfillment of the duty of protection, it is valid.¹⁹⁶ If courts subjected every federal law that created a classification based on Indian status to strict scrutiny under the Fifth Amendment, then there would be very little left of Title 25 of the United States Code.¹⁹⁷

Federal laws establish several types of Indian status classifications.¹⁹⁸ The oldest federal laws provided that Indian affairs laws applied to “Indians.”¹⁹⁹ Throughout most of the nineteenth century, federal laws used this classification.²⁰⁰ Even today, critically important laws, such as laws providing for Indian country criminal jurisdiction, depend on “Indian” status.²⁰¹ Eventually, Congress began to enact laws that applied to Indians based on their blood quantum or tribal membership status.²⁰² The ICWA uses multiple definitions for different purposes. Congress defined an “Indian child” as a child who is a tribal member or eligible for membership.²⁰³ Congress also extended preferences in adoption placements to other family members who are tribal members, other tribal members, and other “Indians” who are not members of the child’s tribe.²⁰⁴

Anti-ICWA opponents focused on the Indian children who are not tribal members, but merely eligible for membership, and the Indian families who are not members of the child’s tribe.²⁰⁵ Rather than challenge the ICWA directly as a racial classification, a non-starter,²⁰⁶ they have decided to focus on the parts of the ICWA that apply to persons who are Indians but not members of a tribe. This strategy is based on a gloss on Indian law introduced by disgraced Judge Kozinski, who theorized that all classifications based on Indian status not rooted in tribal membership are unconstitutional.²⁰⁷ If Kozinski is right, then every Indian affairs statute that applies to “Indians” or to Indian people based on their blood quantum should be subjected to strict scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause. That would include, to name a few, the Indian Civil Rights Act,²⁰⁸ much of the Indian Reorganization Act,²⁰⁹ and the large thrust of the federal Indian country criminal jurisdictional statutes.²¹⁰

Needless to say, Kozinski was wrong. As Fletcher has argued, Congress possesses the power to make classifications based on Indian status, whether it uses the term “Indians” standing alone, or blood quantum, or tribal membership.²¹¹ The Constitution provides that Indian tribes are entities about which Congress can legislate,²¹² and it further provides that “Indians not taxed” are classifications of persons.²¹³ But the Constitution defines neither of those two terms. Fletcher has argued that Congress, as the holder of the Indian affairs plenary power, is the logical source for the definition of those terms.²¹⁴ So long as Congress acted rationally in defining an entity as an “Indian tribe” or a person as an “Indian,” the classification is valid under the Constitution.²¹⁵

In enacting the ICWA, Congress acted rationally to fulfill its trust responsibility to Indians and tribes. Congress chose to acknowledge children who were eligible for tribal membership but not yet members for several reasons.²¹⁶ First, Indian children are not born tribal members; they must apply for membership. For example, though Fletcher and Singel’s children are eligible for membership in multiple Michigan Anishinaabe tribes, they had to choose which tribe their children would claim membership in. Second, Congress acknowledged that, for whatever reason, Indian custodians might not yet have made that choice for their children. Such reasons could include that the state or another group (like a religious adoption agency) took the child at birth. Therefore, Congress was acting rationally in including children who are not yet members of a tribe but are eligible.

The ICWA also extended placement preferences to Indian families who are not members of the child’s tribe.²¹⁷ Prior to the ICWA, state agencies openly discriminated against all Indian families.²¹⁸ States declined to license Indian families as foster families;²¹⁹ this is still a serious problem because states like South Dakota do not contact Indian foster families, preferring to place children with non-Indian families.²²⁰ States also intentionally place Indian children with non-Indian families: in the early 1970s, 85 to 90 percent of Indian children in foster care were placed in non-Indian homes.²²¹ By including Indian families who are not members of the child’s tribe, Congress forced states to put Indian families back in the mix of placement preferences.

Additionally, many Indian tribes are interrelated, like the tribes of the Three Fires Confederacy of Anishinaabe nations in the western Great Lakes or the tribes of the Haudenosaunee Confederacy of the eastern Great Lakes. While it is true not all Indian tribes are alike, it is also true that states and the federal government discriminated against all Indians alike; for example, the federal government forced Indian children from across the country to attend boarding schools like Carlisle and Haskell.²²² It is also true that placement preferences are not mandates, and state courts must still find that a placement is in the best interest of the Indian child. Finally, it is rare for Indian children to be placed with Indian families who are not members of their tribe.²²³

If the plaintiffs prevail in persuading the Court that the ICWA is subject to strict scrutiny, perhaps providing a path for the Court to strike down the ICWA altogether, the likely immediate consequences will be a series of attacks on the federal statutes that establish and govern federal criminal jurisdiction over Indian country. These statutes date back to the 1790s,²²⁴ and the jurisdictional hook is the classification “Indian.”²²⁵ If these classifications are subject to strict scrutiny, then it is very possible that the bulk of federal criminal jurisdiction in Indian country would be thrown into complete disarray.

C. Tenth Amendment Commandeering

The Fourteenth Amendment mandates that states must ensure equal protection and due process.²²⁶ Section 5 of the Fourteenth Amendment extends enormous enforcement power to Congress.²²⁷ The Supreme Court has held that Congress may not “commandeer” state legislatures in the effectuation of federal policy, but Congress may engage in “remedial commandeering” under Section 5.²²⁸

Anti-ICWA opponents claim that the ICWA runs roughshod over state government powers to handle child welfare. They argue that states possess exclusive power, reserved by the Tenth Amendment, to regulate child welfare. Specifically, they contend that the ICWA’s obligations upon states to provide active efforts to reunify the Indian family,²²⁹ to take into consideration the testimony of a qualified expert witness on Indian child-rearing,²³⁰ and to keep records regarding placements,²³¹ violate the Tenth Amendment by commandeering states—a position that a majority of the Fifth Circuit adopted in Brackeen v. Haaland.²³² The anti-ICWA opponents view these provisions as merely congressional preference on the best practices of child welfare generally.

Nonetheless, they are wrong on the merits of a straight-up commandeering analysis.²³³ But more fundamentally, the ICWA is authorized by Section 5 of the Fourteenth Amendment. The broad sweep of the statute is therefore consistent with an effort to stop state discrimination against Indian families that led to one-third of Indian children being removed from their homes, with the large majority of those children being placed with non-Indian families.²³⁴

The ICWA’s active efforts, qualified expert witness, and recording requirements are all designed to enforce the Fourteenth Amendment’s equal protection and due process requirements on states. Congress found that states had been discriminating against Indian families on the basis of race, leading to the “wholesale” removal of Indian children from their homes.²³⁵ States were intentionally targeting Indian children for removal because of their race, occasionally deeming any children residing on a reservation, by definition, as experiencing neglect.²³⁶ States believed that Indians’ extended family parenting was inappropriate, applying a nuclear family standard without regard to Indian child-rearing practices.²³⁷ States also coerced Indian custodians into voluntarily terminating their parental rights by threatening to terminate their welfare benefits, or through “entrapment.”²³⁸

Finally, at least nine states, most of which have significant Indian child welfare dockets or Indian country lands within their territories, have incorporated much of the ICWA’s protections into state law.²³⁹ These states have no commandeering concerns at all.

If any one of the ICWA’s provisions is found to violate the Tenth Amendment’s anti-commandeering principle, the immediate potential impact could be the end of much state criminal jurisdiction in Indian country. Public Law 280, the federal law that extended state criminal jurisdiction into six states—Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin—is a mandatory, unfunded federal mandate imposed on those states.²⁴⁰ States are not even authorized to tax Indian country property or property rights in order to fund the mandatory extension of criminal jurisdiction.²⁴¹ If commandeering applies robustly to Indian affairs statutes like Public Law 280, then it seems likely that challenges to that statute will likely follow—and perhaps succeed.

D. Nondelegation

Invoking its Indian affairs powers, Congress required state courts to follow tribally promulgated placement preferences.²⁴² Some, but not all, tribes have adopted placement preferences that differ from the default preferences in the ICWA.²⁴³ Opponents claim that the ICWA violates the nondelegation doctrine, which prohibits Congress from delegating its legislative function to another branch of government, or in this case, another government.²⁴⁴ These opponents, again, are wrong. As the Fifth Circuit held, either Congress validly incorporated another sovereign’s law as its own, or the tribal placement preferences are a valid delegation of regulatory authority to tribes.²⁴⁵ Congress regularly delegates authority to Indian tribes; Indian country liquor regulation and environmental protection are examples of this delegation.²⁴⁶ In both instances, tribes employ their own legislative powers and adopt rules to fulfill federal regulatory prerogatives.

This Part merely summarizes the constitutional questions raised by ICWA opponents. Absent a radical change in Indian law, the seriousness of these questions is significantly overblown. Settled law going back literal centuries protects the ICWA. But other factors have skewed the defense of the ICWA. In Indian law, everything can change with five votes at the Supreme Court.

V. Lawyering the Constitutionality of the ICWA before the Supreme Court

By any measure, the strategies of the anti-ICWA groups have been a dramatic success. In 2013, when the Court decided Adoptive Couple v. Baby Girl,²⁴⁷ in which Justice Thomas’ concurring opinion all but begged for a direct constitutional challenge,²⁴⁸ no federal court had ever declared even a single provision of the ICWA unconstitutional. Nine years later, as Brackeen²⁴⁹ puts the overall constitutionality of the ICWA before a Court now flooded with radically conservative justices, anti-ICWA groups have reached the last stage of their crusade.

The strategy employed by ICWA opponents, who are incredibly well funded, targeted the weakest parts of national tribal interests. ICWA opponents intervened or brought original actions in state and federal jurisdictions from the East Coast to the West Coast.²⁵⁰ Moreover, the ICWA’s primary defenders and advocates are almost exclusively trial-level attorneys.²⁵¹ Because there are no attorney fee award statutes, nonprofit litigation firms cannot dedicate sufficient resources to defend the ICWA. Professor Fort is the only full-time appellate attorney defending the ICWA in the entire nation. Tribes and national tribal organizations do not have the resources to dedicate even one attorney to ICWA appellate cases full-time. Of course, for-profit litigation firms do not handle ICWA cases except in rare circumstances, such as when a case becomes sufficiently notorious for justifying pro bono or reduced-fee work.

Because states are so lax at notifying tribes of Indian child welfare matters, tribes often do not hear about cases that involve existential challenges to the ICWA until far too late. What’s more, states usually do not even notify tribes of ICWA appeals at all, even when the tribe intervened below.²⁵² Often, a tribal attorney, social worker, or Professor Fort would hear about a case because attorneys representing anti-ICWA groups would promote their anti-ICWA work on social media.²⁵³ Or the tribe would receive notice of a case already decided at the first level of appeal and must then attempt to force a second appeal so that it can participate (an effort that would be futile if the state does not have an intermediate court of appeal).²⁵⁴ Moreover, in most instances where anti-ICWA parties bring an appeal, the attorney defending the ICWA would have limited or no appellate practice experience. Professor Fort’s ICWA defense clinic attempts to fill that gap. The ICWA clinic has filed dozens of amicus briefs in such cases or represents tribes directly,²⁵⁵ but this is not enough.

There are thousands upon thousands of ICWA cases pending in trial and family courts throughout the nation at any given time. Moreover, there are about thirty reported state court ICWA appellate opinions filed each year,²⁵⁶ and many, many more unreported cases. Indeed, there is more appellate work than several large law firms can handle.

The anti-ICWA groups knew this—and exploited it. Given the structural disadvantages tribal interests face, it was inevitable that the strategy to inundate state and federal courts with attacks on the ICWA would lead to a Supreme Court showdown.

A. Abusive Procedural Strategies

In contested ICWA cases, the plaintiff or petitioner owns almost all of the procedural advantages, which allows the petitioner to control the narrative. And in Indian child welfare matters in state court, the narrative almost always is non-Indian parties claiming that Indian custodians and potential foster parents are terrible, tragic perhaps, but still terrible.²⁵⁷ In a state court system where few officials and judges are Indian, this narrative fits the historical legacy that demonizes Indian people and Indian tribes.

It starts with the complaint or the petition since it is the first pleading the court sees. The complaint in a child welfare proceeding is accompanied by affidavits by law enforcement and state workers, which assert that parents and custodians neglect their children. The petition often will claim that there are no Indian foster parents available, and in a contested adoption proceeding, the petition will explain how the petitioners can provide better emotional and financial security than the biological Indian families. Because these cases are typically resolved in motions to dismiss, where the court must presume the facts as stated in the complaint and affidavits are true, the petitioner then controls the narrative at the trial level and beyond. If the state says the Indian custodians are neglectful, for purposes of motion practice, they are. And if the non-Indian parents petitioning for adoption claim that there are no viable Indian families to adopt, then for purposes of motion practice, this is the truth—even when it is not.

Consider the case Adoptive Couple v. Baby Girl.²⁵⁸ There, a non-Indian birth mother, a non-Indian petitioning adoptive couple, and counsel for them both attempted to keep the identity of the Indian child from her tribe, the Cherokee Nation.²⁵⁹ Counsel sent a notice to the tribe with the Cherokee birth father’s name misspelled and an incorrect birthdate for the child.²⁶⁰ When the Cherokee Nation responded by stating it could not verify the child’s eligibility for citizenship with the information provided,²⁶¹ the family moved the child from Oklahoma to South Carolina, an act they took based on their false representations to the State of Oklahoma, which violated the Interstate Compact on the Placement of Children.²⁶² The ploy succeeded; the Supreme Court reversed the lower court, concluding that no Indian family had ever been established that the ICWA could protect.²⁶³

Similarly, the federal suit brought by the states and three non-Indian adoptive couples in Brackeen has allowed the anti-ICWA parties to privilege their narrative of the case over the ICWA defenders.²⁶⁴ For instance, the plaintiffs alleged in the pleadings that the Indian grandmother with whom the Indian child was placed into foster care (and then later adopted) had previously lost her foster care license.²⁶⁵ That allegation is false (and the plaintiffs likely knew that when they made the allegation),²⁶⁶ but the procedural posture of the case ensures that no court will have to address this issue. The district court and many of the Fifth Circuit judges relied upon the grandmother’s alleged loss of her foster care license in condemning the application of the ICWA to that placement—effectively relying upon a falsehood perpetrated by the plaintiffs, one that procedural rules allow to occur. One would think that ethical rules requiring candor to the tribunal²⁶⁷ would also require counsel for plaintiffs to correct the record.

Additionally, the post-decision “shadow docket”²⁶⁸ machinations in Adoptive Couple involved potentially abusive procedural maneuvering that undermined child welfare best practices. After the Court reversed and remanded the matter back to the South Carolina Supreme Court,²⁶⁹ a split state supreme court panel remanded the case to the family court “for the prompt entry of an order approving and finalizing Adoptive Couple’s adoption of Baby Girl, and thereby terminating Birth Father’s parental rights.”²⁷⁰ The dissent from that order pointed out that “[m]uch time has passed, and circumstances have changed” since the state court had ordered the Indian child to be placed with their biological Indian father.²⁷¹ The usual practice in child welfare proceedings is to conduct a “best-interest-of-the-child” hearing at every critical stage of a child’s journey through the system,²⁷² just as the dissent insisted.²⁷³

After the state supreme court’s decision, the Cherokee birth father petitioned the Supreme Court for a stay to allow the family court to conduct the hearing; the Court denied the motion without comment.²⁷⁴ There was no best-interests hearing before the Court ordered the removal of the Indian child from their Cherokee father. When the Indian parent asked for it, the Court barred the lower court from conducting the hearing. If the hearing had occurred, it is possible, even likely, that the Cherokee father would have won. Perhaps the Court was unaware that the typical route for family law practice is to conduct a best-interests hearing. But we will never know—the Court’s reasoning in blocking the hearing remains veiled.

Finally, the selection of the Indian child’s attorney has enormous consequences in the process for the permanent placement of a child.²⁷⁵ The child’s attorney speaks on behalf of the child, and if the child’s attorney was selected by the parties opposing the ICWA, it is likely that they were selected to oppose the application of the ICWA. Consider the guardian ad litem (GAL) in the Adoptive Couple matter chosen by the adoptive couple.²⁷⁶ In a report to the Court, the GAL ridiculed Cherokee culture by asserting that the only benefit to tribal citizenship was “free lunches” and “little get togethers and their little dances.”²⁷⁷ The GAL was so overtly biased in that case that the adoptive couple even agreed to disregard the report.²⁷⁸ But to ensure success in the case, the adoptive couple then recruited a prominent member of the Supreme Court bar to attack the constitutionality of the ICWA through an amicus brief submitted to the Court.²⁷⁹ In that brief, counsel serving as the GAL abdicated their role as attorney dedicated to articulating the best interests of the child and instead became merely another line of attack on the ICWA.²⁸⁰

Each of these specific kinds of procedural abuses is incredibly impactful, routine, and virtually impossible to remedy in Indian child welfare cases.

B. Abusive Media Strategies

In the past decade, counsel for adoption agencies and adoptive couples have utilized media strategies to demonize Indian families and tribes attempting to enforce the ICWA. As part of the strategy in Adoptive Couple v. Baby Girl, the petitioning adoptive parents and their advisors appeared on the television show, Dr. Phil, and on ABC News.²⁸¹ They revealed the Indian child’s name and showed images of them on national television, successfully garnering national media attention that repeatedly disparaged the Cherokee Nation, the ICWA, and the Cherokee biological father especially, without any nuance whatsoever.²⁸² The media followed the wishes of the non-Indian party by referring to them as the “only family” the Indian child had ever known, reinforcing a horrible dehumanization of the child’s biological family, who had custody of the child at that time.²⁸³

These media strategies are endemic to contested Indian child welfare matters. As a tribal judge, Fletcher witnessed this practice firsthand. He sat on a panel in an Indian child welfare matter that had been transferred from state court to tribal court after a series of lengthy and difficult appeals.²⁸⁴ The non-Indian foster family, who presumably hoped to adopt the Indian children, and their counsel invited the media to interview and publicize the case upon transfer to tribal court to attack the tribe and the ICWA.²⁸⁵

Moreover, these media strategies almost always involve violations of the Indian child’s privacy. Anyone who follows ICWA matters knows an incredible amount of personal information about the Indian child in Adoptive Couple—personal information that the public will know about that child forever. This type of information is typically considered confidential in child welfare proceedings²⁸⁶ but becomes sensationalized fodder for anti-ICWA groups.²⁸⁷

Like abusive procedural practices, abusive media strategies are difficult to remedy. As far as we can tell, no attorney has ever been sanctioned or disciplined for revealing confidential information about Indian children. Therefore, because it is so effective, it will continue to occur.

C. The Judiciary’s Institutional Capacity Issues

No Supreme Court justice, perhaps in all of history, has much experience in family law.²⁸⁸ Lawyers rarely rise to political prominence representing traumatized families or adoption agencies. In both Adoptive Couple v. Baby Girl and the Fifth Circuit’s en banc decision in Brackeen v. Haaland, the courts made embarrassing mistakes that demonstrated a lack of sufficient expertise in child welfare cases.

In Adoptive Couple, Justice Sotomayor’s dissent pointed out that the majority’s interpretation of the ICWA would have severe unintended consequences in family law cases.²⁸⁹ The Court held that since the Cherokee father never had physical custody of the Indian child, ICWA protections never accrued.²⁹⁰ The dissent noted that there could be anomalous, unjust results from this interpretation:

Consider an Indian father who, though he has never had custody of his biological child, visits her and pays all of his child support obligations. Suppose that, due to deficiencies in the care the child received from her custodial parent, the State placed the child with a foster family and proposed her ultimate adoption by them. Clearly, the father’s parental rights would have to be terminated before the adoption could go forward.²⁹¹

As Justice Sotomayor correctly pointed out, that Indian father would have no protection under the ICWA. The case’s outcome derived from the Court’s focus on the Cherokee father’s agreement to terminate his parental rights via a text message outside of the presence of the family court judge,²⁹² which would have otherwise violated the due process protections available to Indian parents.²⁹³ The State of Oklahoma’s legislature debated a bill in the aftermath of Adoptive Couple that would have prevented the termination of a parent’s rights outside of the presence of a judge in open court.²⁹⁴ These reforms that “echo the requirements of [the] ICWA” would protect all parents, not just Indian parents.²⁹⁵ The Court demonized the Cherokee birth father because his claims arose under a law that protected his family due to their Cherokee citizenship. The Court further validated the efforts of counsel for the adoptive couple to mislead the Cherokee Nation and perpetuate a fraud on the judiciary, hardly an ethical practice.²⁹⁶ Is this how low the Court has sunk?

In Brackeen, Judge Costa’s separate opinion pointed out that the Fifth Circuit’s en banc decision would “not have binding effect in a single adoption.”²⁹⁷ Apparently, the majority of the Fifth Circuit sitting en banc in Brackeen was unaware or uninterested in the fact that all of the relevant contested adoptions in the case had already been concluded.²⁹⁸ Even if there had been standing, according to Judge Costa, a federal court order on the ICWA would not be binding on any state court,²⁹⁹ where almost all ICWA matters are decided.³⁰⁰ In the rush to issue enormous and lengthy opinions on broad constitutional questions, the Fifth Circuit’s judges seemed to have ignored their obligation to serve as caretakers of the federal judiciary’s jurisdiction.

Conclusion

Many Anishinaabe people know the aadizookaan (sacred story) of Toad Woman.³⁰¹ Toad Woman snuck into a young Anishinaabe couple’s lodge and stole their infant child. The young couple tried to find the child but gave up and turned on each other. The trauma of losing their child destroyed their relationship, but the mother kept on looking. Eventually, she found Toad Woman’s lodge. Toad Woman had used her powers to magically age the child into a young man. She wanted his labor to provide material resources for her, such as a lodge, deer meat, fish, farmed grains and vegetables, and so on. At first, the mother did not recognize her own child, but she had her suspicions. Toad Woman engaged in what we now call “gaslighting” to trick the mother into leaving, but the mother soon saw through the ruse. She never gave up, and eventually, the young man realized Toad Woman was exploiting him and left with his mother. He returned to his community.

The lives and stories of the struggles of American Indian families are only recently being told. Prior to the ICWA, American Indian families had few legal rights and little opportunity to enforce them. Those stories matter a great deal. In the legal arena, the attorneys usually frame those stories and make them available to the judges, the agencies, and the public generally. How these stories are told is especially important in the United States Supreme Court, where lawyers can win or lose a case depending on this framing.

The attacks on the ICWA are attacks on the ability of Indian parents and their children to tell their stories. The ICWA mandates that state agencies and courts hear the stories of Indian families. These are moving stories, stories that non-Indian listeners are not used to hearing, and stories that are uncomfortable and require thoughtful consideration. Cases like Adoptive Couple v. Baby Girl and Brackeen v. Haaland are decided on the impact of the stories as much as they are law. It is no wonder that those in opposition to the ICWA want it gone. They don’t want anyone to know the stories of Indian people, stories of irrepressible and profound love and humility.

* Foundation Professor of Law and Director of the Indigenous Law & Policy Center, Michigan State University College of Law. For the 2021–2022 academic year, he is the inaugural Visiting Professor for the UC Hastings Law School’s Indigenous Law Center and Visiting Professor at the University of Michigan Law School. He is a citizen of the Grand Traverse Band of Ottawa & Chippewa Indians. He has served as an appellate judge for more than a dozen Indian tribes since his first appointment in 2002. Prior to joining the academy, he worked as in-house counsel for several tribes.

** Associate Professor of Law and Associate Director of the Indigenous Law & Policy Center, Michigan State University College of Law. She is a citizen of the Little Traverse Bay Bands of Odawa Indians. For many years, she served as an appellate judge for the Little Traverse Bay Bands and the Grand Traverse Band. Prior to joining the academy, she served at different times as in-house counsel and outside counsel for Indian tribes and tribal enterprises. Professors Fletcher and Singel have dedicated much of their scholarly agenda to the defense of the ICWA. Much of the information on Indian lawyering in this Article derives from their experiences as attorneys or observations as judges. We are deeply grateful to Kate Fort, the director of Michigan State University College of Law clinics and the founder of the ICWA Appellate Project. Thanks also to Kristen Carpenter, Latazia Carter, Cassondra Church, Angela Onwuachi-Willig, and the American Indian Law Program at the University of Colorado Law School for hosting our presentation of this Article in October 2021. Lastly, while this Article was nearing completion, we learned that our friend and colleague, James A. Keedy, walked on; we wish to honor him here.