Excerpted From: Matthew L.M. Fletcher and Wenona T. Singel, Lawyering the Indian Child Welfare Act, 120 Michigan Law Review 1755 (June, 2022) (301 Footnotes)(Full Document)


FletcherSingelSeveral 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. 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. 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. 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. 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). 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.

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.

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Many Anishinaabe people know the aadizookaan (sacred story) of Toad Woman. 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.

Associate Professor of Law and Associate Director of the Indigenous Law & Policy Center, Michigan State University College of Law.