Excerpted From: Neoshia R. Roemer, Un-erasing American Indians and the Indian Child Welfare Act from Family Law, 56 Family Law Quarterly 31 (2022-2023) (245 Footnotes ) (Full Document)


NeoshiaRRoemerI must start this conversation with a simple fact: I am neither American Indian nor a tribal member. As a scholar and a citizen of the United States, I am concerned by how often our conversations omit American Indians as an entire population. In family law, that omission is not only a disservice to our students and the populations they will serve, but it is a form of racism.

State and tribal courts hear family law matters involving American Indians, like members of any other group, on a near daily basis. One such matter is cases involving the Indian Child Welfare Act (ICWA). Most of my scholarship and practice experience comes from this area. I first learned about ICWA and its application as a clinical law student. Then, through my first job as a Fellow in the Indigenous Law & Policy Center, which houses the ICWA Appellate Project, I supported litigation in numerous ICWA appellate cases with my mentor Professor Kate Fort. Kate Fort is also neither an American Indian person nor a tribal member, but she said something that set the tone for my scholarship. When pushed on the matter of why a non-American Indian woman is such a steadfast ICWA advocate, her response is that while she had no say in the matters of tribal governments or communities, it is her responsibility to ensure that her state court system--and others around the country--keep their promises and legal obligations to Indian communities.

Promises and legal obligations to Indian communities serve as the impetus in both this article and my approach to scholarship and teaching, especially as a professor at the University of Idaho. This matters because the University of Idaho is a land grant institution; the federal government took tribal lands and used these lands to establish and support universities throughout the United States starting with the Morrill Act of 1862. Given the spirit of the land grant institution, it is my absolute duty to ensure that our students have at least a foundational knowledge of the context of these promises and legal obligations even though I have no say over matters of tribal governance. After all, ICWA inspires and precipitates a lot of the conversations we have in modern family law classes: the right to family privacy, the right to parent, parenting, and more. Indeed, ICWA is at the heart of family law because it is about the American Indian family. Yet, many family law classrooms either omit ICWA--and the American Indian family at large--or unintentionally misrepresent the law.

In 1978, Congress enacted the ICWA as a remedial measure to correct centuries-old policies that removed Indian children from their families and tribal communities at alarming rates. Since 1978, state courts presiding over child custody matters around the country have applied ICWA. Over the last few decades, state legislatures, along with tribal community partners and advocates, have drafted and enacted state ICWA laws that bolster the federal ICWA laws. Despite four decades of ICWA, trends in child welfare demonstrate that Indian children are still vastly overrepresented in the child welfare system. Because tribal communities, advocates, community partnerships, and scholars work tirelessly to both ensure and improve ICWA compliance, ICWA still provides some of the best outcomes for Indian children through both family reunification and/or placement within their tribal communities.

ICWA involves important issues for family law scholars not by the sole virtue of its existence but because these issues all tie into our fundamental principles of family law. For example, how do we articulate parents' rights? Who has parental rights and when? What is in a child's best interests? Who gets to decide these interests: an overwhelmed state child welfare worker who knows little about the child's family situation and culture? Should out-of-home placement in child welfare proceedings be the absolute last resort, only after finding the child is likely to face serious physical and emotional harm if left at home? Is there a reason that children should not be placed with extended family members when courts decide an out-of-home placement is best?

Most family law scholars would place these questions into two distinct categories: the focus on the best interests of the child and the protection of parents' rights. Although these two categories exist at the heart of all child custody matters, ICWA is the gold standard for handling child custody matters. According to Kim Dvorchak, Executive Director of the National Association of Counsel for Children: “The ICWA is gold-standard practice because it guards against unnecessary government intrusion, protects family relationships, and emphasizes familial and cultural identity.” However, many of our family law classrooms either minimize the importance of this law or misclassify it all together.

At the same time family law often omits American Indian issues from the classroom, legal scholars have searched for ways to eliminate bias in both legal education and the practice. In this article, I argue that we cannot eliminate bias from our field as we continue a long, historic pattern of racism against American Indian populations through erasure from our classrooms. In family law, a significant part of this erasure lies in how we discuss ICWA and attendant issues.

While the point of this article is to talk about family law pedagogies, the state of representation of American Indian populations in the legal field demands that this conversation start with some basic facts to build a common ground for this conversation. Currently, there are 574 federally recognized American Indian tribes in the United States, with even more tribes that remain state-recognized only or unrecognized. By population, American Indians account for approximately 1.1% of the total population of the United States, or a total of 2.9% of the U.S. population when including individuals identifying as American Indian or Alaska Native and another race. In terms of the legal profession, American Indians comprise around 0.5% of all attorneys in the United States, while fewer than 1% of all law students are American Indian. Within the academy, law schools still grapple with how to best serve American Indian students and pave the pathway into the legal field for these students. Further, there are few American Indian professors in the legal academy at the moment.

Considering the relatively low numbers of American Indian law professors, students, and attorneys together with how limited conversations on the family law concerns of this population and a fundamental Indian law statute are in the classroom, our field feeds into a culture of “invisibility” and bias against American Indians. When our classroom conversations and texts exclude the American Indian population, we set the stage for two likely scenarios. First, for the very few American Indian students in our classrooms, who may already be feeling isolated, ignoring a rather important law in their lives may leave those students feeling invisible and unimportant. Second, for the non-American Indian students in the classroom, it leaves them at a loss when they enter the profession without understanding even the barest principle about federal Indian law and its intersections with family law.

Accordingly, this article discusses how family law classrooms can incorporate ICWA into conversations on family law as a step in eliminating bias against American Indians in the legal academy and in the profession. In this article, I share my experiences coming to law teaching as an ICWA advocate in an era with a huge emphasis on social justice in the classroom. While arguments on critical race theory and its place in the classroom rage nationally, students are increasingly tuned into the fact that the American legal system rests upon some rather problematic laurels that begin with land grabs and forced labor through enslavement. Not only do students want to discuss some of the ideas that they are increasingly exposed to in an online environment, but they need to know how to best serve their clients and advocate for change. They also need to understand that remedies exist to address system failures disproportionately impacting these communities.

Recently, the Reclaiming Native Truth Project engaged non-American Indian participants on a variety of issues important to American Indians today to gauge how participants viewed these issues. In a companion piece, the Reclaiming Native Truth Project presented four key themes in discussing the narratives surrounding American Indian issues: (1) illustrating the values of contemporary American Indians, (2) weaving enough historical facts into conversations to engage learners, (3) linking history to contemporary life for American Indians, and (4) a “call to action” that includes putting allyship into practice.

In this article, I use this approach to demonstrate how we can bring ICWA into family law discussions and why it is an excellent conversational starting point for harm reduction. First, this article illustrates its values with a conversation on visibility and race. Second, this article describes four common misconceptions about ICWA by providing historical and legal facts to refute those claims. Third, this article discusses several ways to bring ICWA and conversations about American Indians into a family law classroom. Finally, this article concludes with a call to action to increase visibility of American Indians in our field by changing the narratives surrounding American Indians in our classrooms in a meaningful way and engaging our tribal community partners.

[. . .]

In the interests of full disclosure and humility, I am a new law teacher and scholar. I will not assume I am the first person to ever open this type of conversation in the classroom. Nor will I pretend to have all answers to educating the next generations of attorneys with less bias. I merely write as a non--American Indian person who is concerned with the erasure of American Indians in academia and in the field of family law. How can our students become effective attorneys if we do not present them with the tools to do so when we know that equal under the law does not mean all families are on equal footing in family courts throughout the country?

What work can family law scholars do to combat the erasure of American Indians in our field?

[. . .]

What this article does not suggest is that everyone should immediately become a self-proclaimed ICWA expert. ICWA rests at a rather interesting intersection of child welfare law, family law, and Indian law. Though ICWA represents some of the best practices in child welfare, it also raises some interesting legal questions that are imbued in culture and centuries of colonial practices. Further, this article does not suggest that legal scholars and allies should jump in and speak over American Indians doing this work already.

Due to bias and disparities in academia at large, many law students may never encounter an American Indian law professor. But they should all encounter the basic facts about ICWA as a foundational principle of family law. Importantly, social justice neither asks nor requires that legal scholars--particularly those of us who are non--American Indians--lead the movement, but it does require that we engage in truthful scholarship and teachings that bolster and support the inclusion of American Indian issues and peoples in family law.

Neoshia R. Roemer is an Assistant Professor at the University of Idaho College of Law.