Introduction
I 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.
I. The Values: Visibility, Race, and Bias
Trouble with visibility means that people often overlook American Indians as a population. The Reclaiming the Native Truth Project’s findings noted: “This lack of visibility and relevance in modern culture dehumanizes Native peoples and erodes support for Native issues.”
Consider: At the same time of the Civil Rights Movement in the 1960s and 1970s, a parallel movement to assert, defend, and secure the rights of American Indians known as the American Indian Movement, or AIM, was also ongoing. But what have you heard about AIM? Is it included in your state’s educational standards on the Civil Rights Movement?
While American Indians are the smallest group by population in the United States, American Indian children are overrepresented in the child welfare system. In 1978, Congress enacted ICWA against the backdrop of “approximately 25–35%” of American Indian children being placed in out-of-home care at that time. Even with ICWA, disproportionate impact remains. American Indian children represent about 1% of the total population, but they made up 2% of the foster care system as of 2020.
In Changing the Narrative About Native Americans, a companion piece to the Reclaiming Native Truth Project findings, organizers suggest starting with a conversation on core values, providing historical facts, tying those facts to contemporary life, and delivering a call to action. Indeed, when Project participants deployed this strategy in the study, the change in non–American Indian participants who support ICWA increased by 17%.
Regarding child welfare, surveyors introduced ICWA to non–American Indian participants while telling them that American Indian children are four times more likely than their counterparts to be placed in out-of-home care. The non–American Indian participants always asked what was in the best interest of the child. From the family law perspective, that is a great starting point! However, information about the likelihood of out-of-home placements for American Indian children elicited “stereotypes of poverty, child abuse and poor living situations.”
By introducing key facts and making American Indians visible, the conversation shifts. In the classroom, this change means the difference in students who receive the tools to deconstruct learned biases and become better attorneys. Accordingly, this section explores how bias against American Indians enters our family law classrooms and a framework for talking about race and ICWA.
A. Visibility and Legitimized Racism Against American Indians
Visibility remains a large concern for American Indian populations. To be clear, this visibility is not a matter of American Indians not existing or speaking out; it is an ongoing form of racism and oppression. Rooted deep in the United States’s nationalist project is the erasure of all things American Indian, including people. Indeed, the large-scale child removal policies that precipitated the need for ICWA were part of this project.
Today, that tradition continues through the exclusion of American Indians in various conversations ranging from sexual assault to police killings, death by suicide, youth development, and child welfare—all issues most likely to impact American Indians at disproportionate rates. According to Reclaiming Native Truth, “[a] study of schools in 2011–2012 found that nearly 87 percent of state history standards failed to cover Native American history in a post-1900 context and that 27 states did not specifically name any individual Native Americans in their standards at all.” A little closer to home, a recent study analyzed the experiences of women of color in law school. When it came to American Indian women, the group cited that the “low number of respondents from students who identified as Native American” led them to include these data in “all of the aggregate women of color responses.” While this may seem understandable from a methodological perspective, this further erases American Indians in the law profession as their experiences are not even discussed in a foundational report outside of an aggregate perspective that likely does not accurately highlight their specific issues.
While this may seem like a series of unrelated events or innocent omissions, the lack of visibility for American Indians means non–American Indians often set the tone of narratives about American Indians. This leads to what sociologist and Muscogee (Creek) Nation citizen Dwanna McKay articulates as “legitimized racism.” That is, because American Indian perspectives are often ignored, especially in conversations surrounding racism and race theory, this lends itself to non–American Indians treating offensive words and behavior as nonracist.
For example, the use of American Indian–themed mascots for sports teams carrying names like “warriors,” “braves,” or some that are blatant racial slurs has been in the media recently. At the recent 2021 World Series, former President Donald Trump was even spotted among a crowd participating in an incredibly offensive gesture and cheer to root for the Atlanta Braves baseball team—a team whose name itself is problematic. While American Indians have been largely vocal about how offensive these names and actions are, non–American Indians have largely toed the line that these names are simply meant to honor cultures that they largely believe to be extinct. Many articles discussing recent name changes for professional sports teams—particularly the Washington football team—have included the racial slur in the title. In other circumstances, an editor might see how placing a deeply offensive racial slur in the title of an article discussing a team’s name change based on its racist history is amoral and problematic. Here, the media provides some legitimacy for using a racial slur and/or racialized language against American Indians.
Another seemingly more benign example is the broadly used word “tribe.” Many people colloquially use the word “tribe” to indicate a fiercely loyal friend group or inner circle. However, some American Indians have articulated a discomfort with using the word “tribe” in this way because it evokes a sense of political identity or belonging that is specifically indigenous. As Professor Rob Williams said in a recent presentation on indigenizing Critical Race Theory, within his community, American Indians are not tribal citizens. Rather, they belong to their tribes or tribal nations. While using the word “tribe” to refer to friends may fall under cultural appropriation, the same way as using certain “tribal” patterns in art or on clothing, going full steam ahead using words and symbols that create discomfort contributes to a pattern of erasing American Indians.
The same holds true when ignoring, or omitting, the issues American Indians face in family law and why ICWA exists. Supportive media—or at least media that provides a picture beyond ICWA’s supposed drawbacks—is a new phenomenon with popular sources like The New York Times, The Atlantic, and NPR all carrying stories that describe ICWA—from the perspective of why the statute is beneficial to American Indians. Not only does modern mainstream media provide coverage on ICWA, but these outlets seek American Indian perspectives. Rebecca Nagle, a journalist and member of the Cherokee Nation of Oklahoma, started the This Land podcast and dedicated it to American Indian issues. This Land’s entire second season focuses on ICWA and the ongoing Brackeen v. Haaland case. Previously, a lot of ICWA news coverage tended to focus on the perspectives of well-intentioned middle-class white families who sought to adopt an American Indian child, but ICWA stood in the way. Unsurprisingly, that media attention reinforced the very notions that ICWA meant to remedy: that middle-class white families with good intentions are the best places for American Indian children, far away from their families, homes, and identities as American Indians.
Overall, this lack of visibility is dangerous. As Rebecca Nagle noted in a recent article for Teen Vogue:
Invisibility is the modern form of racism against Native people. We are taught that racism occurs when a group of people is seen as different, as other. We are not taught that racism occurs when a group of people is not seen at all. Yet the research shows that the lack of exposure to realistic, contemporary, and humanizing portrayals of Native people creates a deep and stubborn unconscious bias in the non-Native mind. Rooted in this unconscious bias is the idea that Native people are not real or even human.
Whether we consider this a form of bias or racism, all roads lead to the same place: erasure. A lack of understanding about ICWA is a prime example of the type of bias that leads to ideas that American Indian people “are not real or even human.” Taking this one step further, the type of high-dollar cases that can command and sustain a coordinated press presence also come with quite a bit of privilege that has traditionally eluded the American Indian population—which is its own problem.
Without facts, I once fell prey to this type of media coverage in forming an opinion on ICWA before I even went to law school. Before providing the following example, I must say that I do not give this example lightheartedly or without shame. Rather, I provide this as what might be a teaching moment for others as it certainly was for me because understanding the facts about ICWA really does matter. My first media exposure to ICWA came in the early 2010s and involved In re Alexandria P. Without the attendant details about ICWA that I would later learn in law school and faced with unquestionably biased reporting, I questioned why anyone would rip a child from their loving foster family’s arms. Those “poor parents” loved her and wanted the best for her. Why should some antiquated law get in the way of that?
Later, I learned that the reality of Alexandria P. was not exactly the story that the media carried. In Alexandria P., the state of California placed an Indian child in foster care. Within a few months of identifying that ICWA applied to the case, and prior to placement with the foster family that would later sue, the child’s tribe intervened in the case. Because the state was in the process of trying to reunify the child with her father and the foster family lived near to the father, the tribe agreed to placement with the foster family. If the father’s rights were terminated, the tribe recommended placing the child in Utah with relatives (the R.s). Although the state eventually mandated visits with the child and her family in Utah, placing her in Utah at the outset of the case was not ideal because reunification efforts with her father were still ongoing.
The foster parents knew that the child’s placement was subject to ICWA and that the placement was a temporary solution as foster care is generally meant to be. When the reunification efforts failed, the tribe wanted to go ahead with its plans to place the child with family members living in Utah. Once the state terminated the father’s rights, the foster family expressed they wanted to adopt the child. However, the state social worker informed them that the tribe already had a planned adoptive placement. The litigation over the child’s placement then continued for four more years.
Clearly, the foster family wanted to adopt the child and ultimately could not—which was the story the media told. At least one contemporary media article featured photos of the foster family with their children and the foster family in distress over the decision. In ordinary circumstances, a story this sensational might feature how this child had relatives waiting to adopt her, in an environment she enjoyed, with siblings waiting for her to join them. The final California Court of Appeals opinion in this matter details how much the child enjoyed spending time with her family in Utah, which the foster family objected to on the grounds that they believed she was too young for overnight visits. Yet, the media focused on the white foster family—who continued its legal pursuit of this adoption for years in what became a fight against ICWA itself in order to preserve their own self-articulated right to adoption.
The media reports that missed half of the story in Alexandria P. while making little attempt to express the legalities or facts of the case for the public told a tale as old as the American nation-state itself. These reports prioritized the foster family’s need for adoption over the facts in the case, even over the best interests of the child and keeping the case less contentious. This story was that people who could not possibly understand what it takes to make an appropriate, loving family for a child put a good, middle-class white family through the wringer over a law that clearly serves some large, abstract government interests, not children. Media attention garnered an online petition with 100,000 signatures and a GoFundMe page that has raised just over $57,000 to “save” the child.
Conversely, the child’s attorney had a different view of the situation. The attorney suggested that successive appeals by the foster family only served to delay the child’s permanent placement. Delaying a permanent placement is contrary to any child’s best interests. Further, her attorney noted that the child had a loving relationship with her biological family and that they were not strangers in any way. While the goal was to initially allow the child to maintain contacts with her foster family once she was placed with her biological family, that became impossible because of the foster family’s behavior—including the increased media attention they brought to what should have been a semi-confidential proceeding involving a minor. Erasing the purpose of ICWA—and the child and her family members—to uplift the narrative of the “good family” played directly into white supremacist ideas as old as the nation without ever saying the words expressly.
Although this speaks to a larger bias problem in the media and society, family law has a similar problem. Family law scholars should not allow our students to walk out of our classrooms susceptible to believing or perpetrating bias. As we do when we talk about things like distribution of assets, spousal support, or child support, we should bring awareness to how family law interacts with and serves the American Indian population. Indeed, American Indians are concerned about these issues in addition to ICWA. By introducing ICWA and some basic principles to our students, we can resolve some of these misunderstandings that a largely non–American Indian population earns earnestly through continued attempts at erasure of American Indians in the law and society.
Portraying American Indian families and communities realistically in the classroom is more likely to have a positive impact on our American Indian students by declining to participate in their erasure. As progressive as the family law classroom must be, it should also be a tool in eliminating some forms of bias, or legitimized racism, against American Indians. As a family law conversation, ICWA emphasizes that American Indians are still here. Not only are American Indians not invisible, but American Indian families and communities are thriving in part because ICWA allowed tribal communities to focus on rebuilding after decades of governmental devastation.
B. ICWA and Race
ICWA is a tool of federal Indian law, not a race-based law. While American Indian/Alaska Native is recognized as a race according to U.S. Census Bureau data and racial discrimination has a role in this conversation, ICWA neither speaks to nor applies to a racial classification. Rather, ICWA applies to a political classification that tracks the child’s tribal citizenship in a federally recognized tribe. Where a state ICWA law tried to expand this definition to include children who are ethnically American Indian but not tribal members, the state ICWA law was considered unconstitutional. ICWA defines an “Indian child” as any unmarried person under the age of 18 who is either an enrolled member of a federally recognized tribe or the biological child of an enrolled member of a federally recognized tribe and eligible for enrollment. Thus, ICWA applies to a very specific group of Indian children.
The political status classification matters in family law because the Fourteenth Amendment’s Equal Protection Clause, which has been a staple to modern family law cases like Loving v. Virginia, Zablocki v. Redhail, and Obergefell v. Hodges, generally prohibits race-based classifications. Viewing, or positioning, ICWA as a race-based statute may raise concerns as to whether ICWA itself violates Equal Protection. This is also why some of the more negative attention and treatment ICWA receives tends to position children as “part-Native,” or list their blood quantum—a metric itself steeped in colonial history. Indeed, the statute the Supreme Court struck down in Loving also used blood quantum, with anyone considered to have more than 1/16 American Indian blood ineligible to marry a white person. The opening sentence of Justice Alito’s opinion in Adoptive Couple v. Baby Girl includes the child’s blood quantum to highlight how small it is. While the number seems incredibly minimal to the average reader, that is the point: to ignore that being American Indian is a political status that cannot be represented by a fraction. A child either is or is not an American Indian; there is no fractionating. Using race while talking about ICWA this way is a means to draw the reader’s attention to the idea that the child in the case at hand is not even a “real” American Indian. Further, comparing how blood quantum is used in Loving with how it is used in Adoptive Couple demonstrates how racist the notion is.
Political status, as opposed to race, is important to understanding ICWA’s existence and functionality as a remedial statute. As Professor Gloria Valencia-Weber notes, this political status remains the most important right for American Indians as calls for racial “equality” often led to a backlash against American Indians who the American public sees as exercising “special rights.” These rights are not special rights. Like ICWA, these rights are usually obligations the federal government owes Indian tribes—but is late in repaying or remedying. However, considering American Indians “only as a racial category denies the centuries of values that created distinct cultures, with customs and practices. While individual tribes are distinct in how their values are lived in everyday life, there is a shared perspective that interdependent relationships are the foundation for a community.”
The understanding that American Indian is a political, instead of racial, status predates ICWA. In the 1830s, the U.S. Supreme Court established that Congress has a special trust relationship with Indian tribes such that Congress has plenary authority to make laws regarding Indian tribes. For 200 years, Congress has exercised the authority to make laws regarding Indian tribes and conduct a government-to-government relationship with Indian tribes because tribes are sovereign bodies. That is, Indian tribes enjoy tribal sovereignty, which includes defining their own membership.
However, this relationship also attaches to individual members of Indian tribes as those tribal members have a relationship with their governments. In Morton v. Mancari, the U.S. Supreme Court heard the case of employment preferences at the Bureau of Indian Affairs (BIA), where tribal citizenship was a preferred employment qualification. In Morton, the Supreme Court reasoned:
[T]his preference does not constitute “racial discrimination.” Indeed, it is not even a “racial” preference. Rather, it is an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups. It is directed to participation by the governed in the governing agency.
Indeed, the Supreme Court further explained what race and political status mean for American Indians:
The preference is not directed towards a “racial” group consisting of “Indians”; instead, it applies only to members of “federally recognized” tribes. This operates to exclude many individuals who are racially to be classified as “Indians.” In this sense, the preference is political rather than racial in nature.
Congress took a similar approach when it enacted ICWA. Prior to enacting ICWA, Congress found that “Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources.” Further, Congress recognized that “no resource . . . is more vital” to Indian tribes and their continued existence than their children. As a trustee, the U.S. government has a “direct interest” in protecting children who are either members of or eligible for membership in an Indian tribe. From ICWA’s plain language, Congress’s intent was to promote tribal sovereignty and protect Indian children and families with the goal of reversing decades of policies meant to actively harm and impair them.
Congress demonstrated its intent to define American Indian as a political status, instead of a racial classification, in the Multiethnic Placement Act of 1994 (MEPA). In enacting MEPA, Congress intended to facilitate adoptions by preventing discrimination in the placement of children on the basis of race, color, or national origin. Indeed, failure to comply with MEPA constituted a violation of Title VI of the Civil Rights Act of 1964. However, MEPA was clear: “NO EFFECT ON INDIAN CHILD WELFARE ACT OF 1978.—Nothing in this section shall be construed to affect the application of the Indian Child Welfare Act of 1978.” In a law meant to prevent racial discrimination in child welfare, Congress purposely and explicitly excluded American Indians, deferring to ICWA.
However, this section should not be construed as though there is no racial discrimination against American Indians in this context. Rather, the framing of this conversation as a political classification, not a racial classification, matters to how and why the law itself works. For example, in the casebook that I assigned in Family Law this past fall, the seven pages in the entire text dedicated to ICWA are in the section on interracial adoption with notes and questions on the appropriateness of ICWA as a race-based statute. Overall, people have mixed feelings, including apprehension, surrounding laws implicating race. Reframing this conversation to be more precise reduces stigma surrounding ICWA that implies this law treats Indian children differently based on race.
With that said, race—especially contemporary racism—cannot be removed from these conversations. As noted above, American Indians continue to face immense racial discrimination. Conversations on racial disparities in child welfare and interracial adoption remain important in this conversation. The oral histories of some American Indian children adopted by white families include some horrific practices in this context. American Indian children and families have faced significant racial discrimination in foster care and adoption. Prior to enacting ICWA, Congress heard testimony from Indian communities that were devastated by policies that allowed people, some of whom acted under the color law, to come and take children away from their homes at will without any process or opportunity for Indian parents to receive their children back upon demand.
For decades, this was federal policy; removing American Indian children from their families and homes was standard procedure. As historian Margaret D. Jacobs notes, “Indian child removal worked as a tool of control as powerful, if not more so, than outright warfare.” In a speech Richard Henry Pratt, the infamous architect of the Indian boarding school project, delivered in 1892 to the National Conference of Charities and Correction, he stated:
A great general has said that the only good Indian is a dead one, and that high sanction of his destruction has been an enormous factor in promoting Indian massacres. In a sense, I agree with the sentiment, but only in this: that all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.
Without question, this statement is racist. Yet, these are the words of the founder of the Carlisle Indian School and architect of the Indian boarding school project. And this ideology guided the federal government for decades as it supported boarding school programs that saw American Indian children placed in schools far from home to be stripped of their cultural identities, abused, and even killed. Some of those children never made it back and their communities are still trying to repatriate them today. A new initiative that Deb Haaland, the first American Indian Secretary of Interior, has recently taken up is the Federal Indian Boarding School Initiative. The goals of this initiative include to shed light on this painful history, repatriate the remains of children buried at these schools, and examine the lasting trauma from boarding schools. Indeed, some families are still trying to survive the remnants of these policies today as they manifest in modern child welfare policy and procedure.
During the mid-20th century, Congress even took to terminating tribes outright, meaning tribes lost their federal recognition and, often, their land bases in an attempt to assimilate American Indians. In the immediate lead up to ICWA, the federal government even supported Indian relocation policies—which was one of its last-ditch efforts to force American Indians to assimilate. In this relocation program, BIA officials encouraged American Indians who were capable of working to leave their reservation lands and travel to urban areas to take jobs. The federal government’s expectation here was that in these new, urban settings, American Indians could become “Americanized,” requiring no further need for a special tribal trust-relationship. Relocation policies are one reason ICWA matters today as a large portion of American Indians no longer live on reservation lands. From 1948 to the 1970s, the BIA assisted 155,000 American Indians in relocating to urban areas.
That is the history of the federal government’s policies that intended to eradicate American Indians for various reasons, including things like land grabs for resources. All of these projects—including the assimilation of Indian children—were concentrated in the United States’s national development project. Even in a time before modern child welfare law, American Indians often lost custody of their children through coercive practices implemented by state and private actors alike.
Because this history is the bedrock for ICWA, it is impossible to avoid talking about race and ICWA. Indeed, these policies were racist and amounted to cultural genocide. Legally, though, ICWA exists because in 1978 Congress heard testimony and recognized its special trust responsibility to Indian tribes in this field. One way to uphold that trust responsibility was to ensure that tribes could maintain their membership without significant outside interference based in animus toward American Indians in child custody proceedings, such as pre-adoptive placements, adoptive placements, foster care placements, and termination of parental rights.
Yet, nearly 45 years after ICWA’s enactment, American Indian children and families remain vastly overrepresented in the child welfare system. Today, the difference is an increasingly visible American Indian activist community whose message is reaching mainstream media, fully developed tribal legal departments, and an increase in the number of American Indian attorneys and professional allies doing ICWA work. This is yet another reason why discussing ICWA in our family law courses in a way that is precise both legally and in terms of the social harms that ICWA addresses matters more now than ever.
II. The History and How It Is Applied Today
ICWA governs a variety of child custody cases involving American Indian children. Importantly, ICWA itself follows the statutorily defined Indian child. Not all family law textbooks cover child welfare proceedings beyond Stanley v. Illinois or those related to child support, but ICWA does have at least one important non–child welfare use in family law: stepparent adoptions.
To be clear, ICWA does not cover typical custody proceedings between two parents. For example, ICWA would not apply in a dissolution proceeding involving the Indian child’s biological parents. Additionally, and of important note as to ICWA and race, ICWA would not apply in a dissolution proceeding—or any other type of child custody matter—to weigh heavily in favor of placement of the child with an Indian parent.
Practitioners often misunderstand and, in some cases perhaps willingly, misrepresent what ICWA does and does not do. For example, I once had a case where an opposing party’s attorney was convinced that ICWA would apply because their client was non-Indian and the other parent was Indian. Allegedly, the attorney even told their client that if this went to tribal court, which ICWA requires, they would lose custody. Not only was that a misapplication of ICWA, but the facts weighed heavily in favor of their client gaining custody in any court. In the end, the opposing party fled the country partly in fear of what might happen to their child if ICWA applied to the case. Whether this was problematic lawyering or just a misunderstanding, this demonstrates why we need to understand what some of these concerns are. Accordingly, this section lays out some of these common misunderstandings and misrepresentations to help family law scholars better understand what the statute does.
A. Myth: ICWA Penalizes Non-Indian Families of Indian Children Who Would Want to Foster and/or Adopt an Indian Child
This misunderstanding is against both the plain language of the statute and how courts have interpreted ICWA for nearly 45 years now. Under § 1915, ICWA provides for placement preferences that prioritize the child’s family. However, the statute does not limit placement to the child’s Indian family or other American Indian persons. ICWA follows the child, not necessarily who in the child’s extended family is an American Indian person. In fact, many American Indian people are of mixed-race descent. It is not uncommon for an Indian child to have extended family members who are not Indian—and ICWA still applies in those cases.
Indeed, there are also cases where tribes may favor a non-Indian, nonrelative placement. In 1989, Mississippi Band of Choctaw Indians v. Holyfield became the first ICWA case to reach the U.S. Supreme Court. While the case itself was about tribal jurisdiction over adoptions under ICWA, the surrounding circumstances demonstrate that tribes can and do allow non-Indian, nonrelative placements to adopt. After meeting the Holyfields, the biological mother decided that she wanted the Holyfields to adopt her twins. She even left her home on the reservation to stay with the couple prior to delivery, giving rise to the legal claim at bar in the case. At the U.S. Supreme Court, the Holyfields lost their claim that the state of Mississippi properly had jurisdiction. Because the biological mother was domiciled on the reservation, the tribal court had proper jurisdiction over the children. At the tribal court, the court agreed to allow Vivian Joan Holyfield to adopt the children with a few stipulations as to their enrollment as tribal members and maintaining ties to the tribal community.
Tribes can and do recognize the best interests of the child outside of specific placements. Emerging awareness indicates that most children, regardless of status as American Indian, do not do well in stranger foster care situations. As Marcia Zug notes, child welfare law and policy has ebbed and flowed over the years, circling back to the best outcome for children being to remain with family members. Yet, ICWA has never wavered on that point.
B. Myth: ICWA Allows Tribes to Make a Mess of the Process Because Tribal Courts Cannot Function
ICWA permits tribes to intervene in state court child welfare cases. When a tribe intervenes, the tribe becomes a party in the case. As a party to the case, the tribe can be heard, review documents, and meaningfully participate in the proceedings. If a tribe receives the appropriate notice at the outset of the case, the tribe’s participation generates no more work. Indeed, the tribal representative may provide another layer of checks and balances in the system. What the tribe does not do is hold ultimate say in the disposition of the case. In jurisdictions with a high volume of Indian children involved in child welfare cases, the relationships between state agents, tribal representatives, parents’ attorneys, and the courts are well established. Indeed, some jurisdictions have gone to establishing special ICWA courts to handle these matters.
ICWA also vests tribes with exclusive jurisdiction over member Indian children who are domiciled within their jurisdiction. Where a child is not domiciled on the reservation, parent(s) and/or tribes may petition to transfer child welfare cases to tribal court absent good cause to the contrary. To establish there is good cause not to transfer a child welfare case to tribal court, “the court must not consider”:
(1) Whether the foster-care or termination-of-parental-rights proceeding is at an advanced stage if the Indian child’s parent, Indian custodian, or Tribe did not receive notice of the child-custody proceeding until an advanced stage;
(2) Whether there have been prior proceedings involving the child for which no petition to transfer was filed;
(3) Whether transfer could affect the placement of the child;
(4) The Indian child’s cultural connections with the Tribe or its reservation; or
(5) Socioeconomic conditions or any negative perception of Tribal or BIA social services or judicial systems.
Furthermore, this process requires the opportunity for all parties to be heard—including the tribe, which may choose to decline transfer for whatever reason. Generally, where one, or both, parent(s) object(s) to transfer to tribal court, the transfer will be denied. While the tribe has the right of intervention, this right of participation does not outweigh the parents’ rights or the best interests of the child. If the transfer is denied, the state court proceedings continue with the tribe as an intervenor.
If a case is transferred to tribal court, that means the tribal court has complete, comprehensive jurisdiction to hear the matter. However, the case does not start anew or allow unfit parents to once again resume custody of a child. The child welfare case now continues in tribal court. Indeed, many tribes have their own family and child welfare codes, just like any state court. Tribal courts are prepared to hear these matters as any state court would be with the addition of the cultural competency to hear the case as to the Indian child.
Once the tribal court assumes jurisdiction, the tribal court is responsible for the child and the case. That means tribal resources will be used for attempts to rehome the child, place them in out-of-home care, or find an adoptive family. Additionally, tribes have social services, behavioral health services, and other programs to assist families in these cases similar to state programs, but in some cases, better as they fund diversion programs, housing programs, wellness courts, and culturally appropriate resources. Indeed, tribal court goals are often the same as state court goals, but tribes may be better situated to provide services for children and families. From a financial standpoint, this also means the financial responsibility of a child in need of care rests with the tribe, not the state, after the transfer.
As tribal courts are courts of competent jurisdiction like state courts, they do not make child welfare proceedings messy. Indeed, a tribal court may even express preference for a non-ICWA-directed placement for out-of-home and/or adoptive placement. What matters is that tribes have the right to participate in these cases and assert the best interests of their member children.
C. Myth: ICWA Leaves Indian Children in Dangerous Communities or Placement
When considering how to talk about this misconception, I thought of many ways to approach this notion of danger. Really, there is only one way to say this: To simply label tribal placements and communities as bad because someone, somewhere heard that one placement was bad is no different than other horrible stereotypes that permeate American culture. Considering federal funding mechanisms require that tribal placements are compliant with Title IV-E of the Social Security Act and adoptive placements go through the same rigorous process as non-tribal placements, it is hard to name what the danger is beyond racist and/or archaic beliefs about who makes the best placement for a child. In a case like Alexandria P., that means the child’s family are as equally vetted and qualified as the “deserving” foster or adoptive parents. This particular myth is easily reduced to the notion that the only safe place for a child is with a white middle-class family. To label ICWA as inherently bad for American Indian children because tribal placements and communities are dangerous is a form of legitimized racism.
This is especially true against the backdrop that many scholars in this area, including Professor Dorothy Roberts, argue: Child welfare is largely predicated on discrimination, not the best interests or safety of children. Over-policing, the criminalization of culture and/or race, and the devastating effect of statutory schemes like failure to protect and paternity laws are just as damaging to American Indians as they are to other minority groups.
D. Myth: ICWA Leaves Indian Children in Broken Families
ICWA exists at an interesting crossroads with fathers’ rights. In many ways, ICWA provides solutions for families, particularly unwed fathers, that may otherwise be unavailable. Paternity law, or legal parentage for unwed fathers, is a source of inequality as fathers may be required to bring a paternity action and demonstrate their role as fathers. Unlike motherhood, this right for unwed fathers does not automatically stem from a biological connection to the child. ICWA demonstrates how a more expansive understanding of the family that includes the rights of unwed fathers leads to more logical outcomes as opposed to broken families.
In 2013, the U.S. Supreme Court heard Adoptive Couple v. Baby Girl. In Adoptive Couple, a father challenged an adoption, invoking the Indian Child Welfare Act. From the outset of the events that led up to this case, lack of communication between two parents whose relationship deteriorated was a problem. Compounding interpersonal communication issues, the biological mother sent the father a text message “asking if he would rather pay child support or surrender [his] parental rights.” As the father deployed on active military duty, the adoptive parents notified him of the adoption. When presented with the documents, the father signed the documents, believing he was simply giving the mother full custody. Almost immediately after signing, he realized the paperwork was actually for strangers to adopt the child. He tried to grab the paperwork back from the process server, but he was not able to get them back, so he immediately contacted a lawyer. While he was deployed, the Cherokee Nation, his tribe, intervened in the adoption proceeding. The tribe was not immediately notified because the mother indicated the child was Hispanic, instead of American Indian, on adoption intake forms. At all turns, it seems the biological father understood one thing was happening (he was vesting the biological mother with full custody rights) while another thing was actually happening (strangers were adopting his child). Further, the biological father wanted to maintain ties to his child and form what family legal scholars might call a nontraditional family.
Yet, the father’s mistaken understandings coupled with his true intentions to parent his child, as read through the lens of ICWA, did not sway the Supreme Court. In spite of ICWA’s goal to prevent the breakup of the Indian family, the Court held there was no breakup of the Indian family where the father never had custody. The Supreme Court held where a parent did not have custody previously, ICWA could not apply in terminating their custody. This holding effectively defined a family at the complete exclusion of a parent’s, and child’s, tribal citizenship.
In Adoptive Couple, the Supreme Court held that ICWA did not apply to the case because the father never had preexisting legal or physical custody of the child. Indeed, the Court noted it was undisputed whether the father had physical custody and “as a matter of both South Carolina and Oklahoma law, Biological Father never had legal custody either.” While ICWA protects the interests of Indian children, parents, and tribes, the Court did not find ICWA’s goals persuasive in denying the father’s challenge, in effect denying him legal parentage under the so-called “existing Indian family exception.” While the Court never used this phrase in Adoptive Couple, this concept precluded the application of ICWA in a case where parentage had not yet been established. This is seen throughout Adoptive Couple as the Court noted the statutory language is “to prevent the breakup of the Indian family” and in this case, the breakup of the Indian family had already occurred. To summarize, because the father did not meet a socially acceptable marker of forming an “Indian family,” the Supreme Court held ICWA did not apply here.
Adoptive Couple demonstrates one of the most reductive ways to view nontraditional families. In its opinion, the Supreme Court adopted the language of the adoptive family’s brief that the father “made no meaningful attempts to assume his responsibility of parenthood.” Adoptive Couple looked at a stringent state custody law, completely unpersuaded by ICWA’s goals, and held that no Indian family existed to break up. To family legal scholars, this sounds a lot like the line of biology-plus cases that acknowledge the rights of the unwed father but permit state statutory schemes that place roadblocks to unwed fathers to preserve their rights as legal parents. In 2016, the Bureau of Indian Affairs tried to close this gap when it promulgated new ICWA regulations that firmly and explicitly rejected the “existing Indian family exception” in part because “the relationship between the Indian child and his or her Indian parents” and “whether the parent ever had custody of the child” should not impact the application of ICWA as it follows the Indian child.
A more recent Utah Supreme Court case demonstrates what it looks like when courts look away from stringent state paternity laws and apply ICWA as intended. In B.B., the biological mother traveled across state lines and decided to place her child for adoption. Prior to leaving her home state of South Dakota, she cohabitated with the biological father, and they acted as a family unit. Upon arriving in Utah, she reunited with an ex-boyfriend and decided to place the child up for adoption. In the process, she committed fraud by asking her brother-in-law to pretend to be the father of the child for the purposes of relinquishing parental rights. All the while, the biological father remained in South Dakota with no idea of what was happening until she returned home and declared she had given birth and placed the child for adoption in Utah. The biological father immediately jumped into action to get his child back.
Under Utah’s rather stringent paternity acknowledgment and adoption statutes, he did not have rights as the father. However, ICWA provided a potential legal avenue that kept the father in the courts to pursue his rights. The Utah Supreme Court held that it was inconceivable that Congress intended such a stringent definition of paternity to apply in such cases. In that case, ICWA provided a potential route to family preservation that state law foreclosed. Considering the outcome of B.B., it seems that ICWA filled a gap in parental rights that state law left open.
III. Tying History with Contemporary Issues: ICWA in the Classroom
The goal for teaching ICWA in family law is awareness of the statute and visibility of contemporary issues facing American Indians. Family law students will not be able to fully comprehend this statute in just one or two classes, but they can learn to identify the statute and situations in which it may apply. This section highlights how I included ICWA into a semester of family law teachings and ways for further incorporation.
In terms of methodology, I declined to use my textbook for this portion of the course. While the textbook offers great, progressive insights, the seven pages dedicated to ICWA in the textbook involve Adoptive Couple and fall under the subheading “interracial adoption.” ICWA exists to respond to some of the worst transgressions interracial adoption has to offer, but that is not a good representation of the breadth of ICWA. Instead, I searched for methods to incorporate the ways in which these principles of law might manifest in different aspects for different groups, including American Indian peoples.
From the first day of the semester, I mentioned American Indian children and families and how some cases might be, and have historically been, different for this group. This continued throughout the semester. On Indigenous Peoples’ Day, which was the class immediately preceding our discussion on Stanley v. Illinois, I prepared a packet of case readings and popular media articles for the students. During this class, I provided a brief overview of ICWA that emphasized knowing when it might apply and gave a very generalized picture of the statute that included its historical underpinnings.
While I only had time for one class period on ICWA, the law and how Indian families are viewed came back later in the semester in a class I dubbed “legal parentage.” That class ended up focusing quite a bit on cases like Santosky v. Kramer, In re Sanders, and In re B.B. Slightly dissimilar from the other cases, B.B. is an ICWA case that involves adoption. While discussing some problems regarding termination of parental rights, many students expressed an interest in fathers’ rights and how the rights of unwed fathers are so different than those of married fathers.
The following subsections present some lessons that I incorporated both throughout the semester and in the two “special” classes I carved out in our semester.
A. ICWA and Its History Challenge What Family Law Scholars Have Traditionally Considered the General Rights of Parents
A basic foundational principle for family law is that people have the right to privacy and the right to make decisions about their own families. Griswold v. Connecticut does not belong in the family law textbook solely for its language on birth control accessibility, but it exists to demonstrate the right to privacy in family decision-making that belongs squarely to the family. Later cases like Stanley v. Illinois explore a similar concept regarding the right to family decision-making as to the right to parent. Generally, we discuss these cases as though they are universally applicable because, after all, constitutional rights are facially neutral and belong to everyone. Theoretically, and as any family law scholar would argue within reason, they are facially neutral. However, the reasons why ICWA exists tell a much different story about the facial neutrality of the right to parent versus the reality.
Long before we get to Supreme Court decisions recognizing these more modern conceptions on the right to parent in cases like Stanley, we have cases like Meyer v. Nebraska and Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary that demonstrate just how family law is beyond the private realm and hinges upon the U.S. Constitution itself. Indeed, on my first day as a newly minted family law professor, I grappled with how I would present cases like Meyer and Pierce to my class given my knowledge on historical concepts of family decisions and parenting. I thought about what these cases stand for: the right of the family to make decisions and the idea of the right to parent. That is when my Indian law scholar brain kicked in. The right to parent? Whose right to parent? In the 1920s, when the U.S. Supreme Court decided Meyer and Pierce, the rights of many parents outside of the evangelical, white, middle class were extremely limited both de jure and de facto. In the case of Indian parents, their children were removed to residential schools. Congress later found that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” Most Indian parents—and their tribal communities at large—had little choice in the matter. Accordingly, after discussing and explaining to the class where Meyer and Pierce fit into the broad body of American jurisprudence that is family law, I asked if they believed the holdings of these two cases were universal principles.
I received many nods indicating that both cases are universally applied principles. If you had asked me early in my law career, I would say the same. After all, it is the correct answer. However, understanding not only my own experiences as a Black/biracial woman in the United States but also my experiences with ICWA led me to a much different conclusion. It was not a conclusion that I could just “give” to the class. Instead, they had to arrive there on their own, so I continued to prod.
My next series of questions involved things like “could African-American families in every state decide where they wanted to send their children to school in the 1920s?” and “did Native American families have the ability to choose how their children were educated in the 1920s?” This received a few knowing nods and made some eyebrows shoot up, leading to a brief conversation on residential schools.
While this could be seen as a throwaway conversation, it helped students explore the idea of how the court often articulates a rule of law that has not always been applied equally. On another note, it positioned the class to explore the historical underpinnings of Meyer and Pierce beyond the fact that these are post–World War I cases based in anti-immigrant sentiment. Exploring how articulated rights differed from the reality of many American Indian families for the first three-quarters of the 20th century was a good first step in introducing the class to concerns facing this population.
B. ICWA Applies in Child Custody Proceedings Impacting One or Both Parents’ Right to Parent
In an era where many socially conscious students enter law school, a lot of students care about the concept of parental rights. Particularly, they are interested in how law is, or is not, applied equally among genders. Students ask who is most likely to gain physical custody, and why?
Generally, ICWA does not apply as to custody between two parents. If the custody proceeding has a likelihood to interfere with a parent’s right to the care, custody, and control of their child, and the child is an Indian child under the statute, ICWA applies. While I did not use this in my class this past semester, it is also one way to discuss Troxel v. Granville. In Troxel, a parent challenged a state statute giving any party the ability to seek visitation with a child. The U.S. Supreme Court held that statute unconstitutional as applied because several factors supported the conclusion that an order granting paternal grandparents more visitation than agreed to by the mother “was an unconstitutional infringement on [the mother’s] fundamental right to make decisions concerning the care, custody, and control of her two daughters.”
ICWA provides an interesting piece of conversation because it introduces the idea that culture matters to a child. While the United States has not codified the international Convention on the Rights of the Child, the Convention recognizes children have a right to maintain their cultural ties. The Declaration on the Rights of Indigenous Peoples—which the United States now supports—also recognizes that “Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.” While ICWA speaks to this issue in certain types of child custody matters, surely this concept of cultural ties being tied to a person’s, or in this case child’s, rights is meaningful conversation.
C. ICWA Is a Tool of Federal Indian Law That Applies to Any Out-of-Home Placements in Which the Parents Cannot Receive the Child Back upon Demand, as Well as Adoption
ICWA garners the most frequent discussion on adoption. Frankly, adoption cases are the ones most likely to garner attention. The Supreme Court granted certiorari in Haaland v. Brackeen, which will be the third ICWA case before the Court and the third ICWA case involving adoption before the Supreme Court.
In Brackeen, three states (and a fourth state by amicus) and seven individuals argued before the Fifth Circuit that ICWA is unconstitutional because it commandeers state child welfare and adoption officials and violates equal protection. On the other side, the U.S. government, five tribes that intervened in the case, and 26 amicus states and the District of Columbia argued before the Fifth Circuit that ICWA comports with the U.S. Constitution and is a best practice in child welfare and a tool of federal Indian policy. Beyond family law, Brackeen touches on broader issues of constitutionality that legal scholars and students alike want to discuss. The problem with placing the focus on adoption is that state courts around the country apply ICWA frequently in child welfare matters.
Section 1912 governs child abuse and neglect proceedings involving Indian children. For example, if a parent is haled into child welfare court on charges of neglect, the state court is supposed to make a finding as to whether there is reason to know a child is an Indian child. If the child is an Indian child under ICWA, the court is to notify the child’s tribe of the case. However, the exact volume of child welfare cases where ICWA applies, and is applied each year, is difficult to ascertain because of data collection problems.
If the focus of ICWA is on adoption, the predatory practices used to allow adoptions that do not comply with ICWA to move forward must be considered. Adoptive Couple v. Baby Girl and In re Adoption of B.B. both allow conversation on how the law views unwed fathers.
In my class, I present B.B. as a matter of paternity rights that was also an ICWA case. In B.B., the fact that it was an ICWA case mattered quite a bit as Utah adoption law would have barred the father’s claims. We discussed this in terms of the larger implications of fraudulent activities used as a basis to strip someone’s parental rights, how some states still have schemes that prioritize the mother’s rights in an adoption, and how some states require strict use of the putative father registry laws.
Along with this, I provide a supplemental article from Kevin Noble Maillard, an Afro-Indigenous legal scholar, about a Black father who struggled to obtain custody of his child after she was placed for adoption in South Carolina. While the article deals with themes of race and unwed fathers, it is also a great way to talk about the crux of how the U.S. Supreme Court decided Adoptive Couple: South Carolina custody law was justification for denying an Indian parent his rights under ICWA. I actually use this Maillard article in several classes because it is an eye-opening experience for many students who have never even realized unwed fathers may have different rights, let alone they may have to register on a putative father’s registry in multiple states.
Beyond conversations on parents’ rights and consent to adoptions, this is also a window into a conversation on how a legal victory may not be an actual victory when it comes to families and children. B.B. is similar in that the father won one legal victory, but this did not end the litigation.
D. ICWA Provides a Model for Professional Responsibility
An ongoing issue for many doctrinal classrooms is how to incorporate diverse perspectives and cross-cultural issues into the classroom. Most often, these conversations occur in clinical classroom settings where student attorneys engage with a large population of diverse clients. However, there is less emphasis on these issues in the doctrinal class setting. When we do not discuss cross-cultural issues in a doctrinal setting, this can influence how students view the law in the first place. Implementing cross-cultural teachings should not be a point of divergence for theory and practice in the law.
If American Indians are not mentioned in the doctrinal classroom as part of a living, changing body of family law, and not just as a matter of history, how do we expect students to draw these cross-cultural connections and understandings? Not only does this help non–American Indian students but increasing the visibility of principles in Indian law should also increase visibility for American Indians in the classroom.
ICWA is one way to bring a cross-cultural component into the classroom. Indeed, a large component of ICWA is in ensuring that American Indian children can maintain cultural ties with their tribes. Prior to terminating a parent’s rights, ICWA requires testimony from a qualified expert witness. That expert witness must be someone versed in the “prevailing social and cultural standards” for the tribe. In the best-case scenario, the expert witness—a person who testifies about tribal child rearing practice and custom—should also be a member of that child’s tribe. Further, ICWA requires a demonstration that the moving party has made active efforts to reunify the family prior to terminating a parent’s rights.
While these requirements pertain to a limited class of cases, this is one way to talk about evidentiary standards in family law and what counts. Something that came up often in our semester regarding all cases—premarital agreements, divorce, child custody, child support, and all other topics—was how the evidence that an attorney puts forth to demonstrate the facts in a case really matters because so many of our decisions in family law are (1) statutory based and dependent upon jurisdiction and (2) heavily fact centered.
Further, some of the media attention surrounding cases like Alexandria P. and Adoptive Couple also raises interesting questions about confidentiality in family law matters involving minors. Those children were in the spotlight, and while I have chosen not to use their given names in this article, media outlets used their names and photos. While parents can, and certainly do, consent to this type of thing, it is an interesting privacy issue.
E. ICWA and Related Child Custody Issues Often Intersect with Concerns of Poverty and Social Justice in the Law
ICWA alone is not the only way to discuss the significance of culture to family law matters involving American Indians. Other family law cases, especially those that intersect with poverty and family decision-making, also provide ways to show cross-cultural connections in the classroom.
The outcomes of poverty can be devastating on families, especially children. A recent study demonstrated that directing cash payments to low-income families is linked to better brain development in babies. While the study is still ongoing and trying to determine how the cash specifically helped children, poverty certainly has an impact on family-making decisions.
One of the seminal marriage rights cases involved an American Indian man named Roger Red Hail. Today, his case is known as Zablocki v. Redhail, and we teach this case in family law for the proposition that government regulations upon the fundamental right to marry cannot be so extreme that they would prohibit an entire class of folks from marrying because they are poor. Mr. Red Hail challenged a state statute that required anyone seeking to marry who was subject to a child support order to obtain permission to marry from a court, and further provided that permission could not be given unless the person showed compliance with the order and that the children for whom support was paid were “not then and [were] not likely thereafter to become public charges.” Essentially, the state restricted the marriage of poor people.
In addition to the ultimate holding on marriage rights and equal protection, Zablocki tells us a lot about child support and attendant fees. Yet, the case does not tell this story. For this, I refer to Professor Tonya Brito’s article on Zablocki because it provides not only good details on the case and its outcome, but it also provides a lot of information on American Indians in Milwaukee and federal Indian policy. Well into the 21st century, Mr. Red Hail still owed a mountain of debt in child support. Child support debt is a problem that hits people living in poverty the hardest because the child is likely to have two parents living in poverty, but one parent falls into a pit of debt they can never work their way out of as the missed payments and interest fees stack up. While many students come into family law with notions of the latest seemingly outlandish child support judgment issued against a star athlete, the reality of child support debt looks a lot like Mr. Red Hail. Not only does Mr. Red Hail’s lifetime of poverty matter, but his status as an American Indian also matters.
In 1971, Mr. Red Hail was a minor when his daughter was born. Yet, the judge ordered him to pay $120 in fees for his own guardian ad litem and $466 in fees for the child’s birth and other expenses. In 2021, that would be the equivalent of nearly $4,000 in fees assessed against a minor parent living in poverty. Additionally, he was ordered to pay $109 per month in child support, or the equivalent of about $730 per month today. In a time when states sanctioned the punishment of Indian families for existing, this is what the court considered “just and reasonable.”
Zablocki introduces an interesting component into the classroom that exists at the intersection of race, poverty, and the ability to make decisions on the family, especially when it comes to “nontraditional” family formats and the need for state assistance. Like Moore v. City of East Cleveland, where the U.S. Supreme Court handed down a landmark decision on redlining and housing discrimination, but the plurality opinion omitted the issues of race precipitating the case from the decision altogether, there is nary a mention of Mr. Red Hail’s status as an American Indian and how that might have impacted the outcome of the case. Indeed, Mr. Red Hail’s childhood in Milwaukee living in poverty, growing up in a family touched by child welfare interventions pre-ICWA, precipitated the events leading to the Supreme Court.
Additionally, Sharpe v. Sharpe provides another perspective on child support and what this concept can mean for American Indian families. Though it is substantially in line with other cases on child support modification, Sharpe involves an Alaska Native woman who sought to modify her child support by requesting a reduction in fees after leaving a job making over $120,000 per year to return to her tribal community where she had no income beyond a yearly dividend check. She requested that her child support be reduced from $1,507 to $50 per month. Living in a subsistence community, the mother could not pay this amount each month. The Supreme Court of Alaska affirmed the trial court’s decision to deny that modification.
However, Sharpe contains an important cultural component that appears in the dissent. In that case, the mother did not have primary custody of her child because she struggled with alcohol abuse. Moving back to her home community and returning to a subsistence lifestyle helped her treat her addiction. While the idea that a court will not reduce a child support order simply because a parent chooses to walk away from their income source is not new, this parent walked away for personal reasons in which reconnecting with culture may have helped her become a better parent in the end. Yet, the focus for the majority remained on finances and how her child might suffer without a large child support payment—not how she had made choices that impacted the family and became a better parent. In fact, the majority considered the dissent’s approach centering the cultural needs and connections of Alaska Natives to their villages as potentially devastating for Alaska Native children.
F. ICWA’s Applicability Should Be Considered in Any Given Child Custody Proceeding as Soon as There Is Reason to Know a Child Is an Indian Child for the Purposes of ICWA
As with most law classes, students really wanted to know the practical implications of ICWA. When might ICWA appear in practice? Accordingly, one of my focal points was (1) the type of proceedings in which ICWA applied and (2) the “reason to know” a child is an Indian child standard. The ability to identify that ICWA might apply where there is reason to know a child is an Indian child is foundational for awareness on ICWA. In involuntary court proceedings, the moving party must send proper ICWA notice to a tribe “where the court knows or has reason to know” a child is an Indian child. Indeed, state courts are required to “ask each participant in an emergency or voluntary or involuntary child-custody proceeding” whether they know or have reason to know the child is an Indian child. The ICWA regulations provide for how a court should determine that a child is an Indian child and how to proceed until it knows whether a child is an Indian child.
The regulations are relatively clear on how to proceed in any type of child welfare or adoption: Ask if there is reason to know the child is an Indian child and apply ICWA standards until the court can rule out that the child is an Indian child. Typically, following this process early in the case is best practice and ensures that the court applies the proper standards and the child’s tribe receives notice.
In our initial class explaining ICWA, I spent the most amount of time discussing the definition of Indian child, who has the right to determine membership, and when there is reason to know the child is an Indian child. While I did not go into the requirements of the regulations, I did give a question on the final exam asking students to analyze a fact pattern and determine whether ICWA might apply in this case.
G. ICWA Is Still Good Law
By way of the Fifth Circuit, Brackeen is pending before the U.S. Supreme Court. In a rather complicated, 300-page en banc opinion in which the judges of the Circuit agreed on very few issues, the Fifth Circuit deemed some ICWA provisions and some ICWA regulations unconstitutional—but not all. As that case gears up to be heard before the Supreme Court, there will be more media coverage. Many of the contemporary media articles at my fingertips for this article came from folks writing opinions ahead of, or during parts of, this litigation. Because of the complicated nature of this decision, I will not go into the Fifth Circuit’s entire holding here. What is important to know is that for now, ICWA remains good law.
Brackeen raises constitutional questions, and its posture before the Supreme Court may pique the interest of some students. The specific legal questions in Brackeen include whether ICWA commandeers state officials, as well as equal protection. However, ICWA is a bare minimum, ground-floor-level statute that only requires states to meet standards that are no more cumbersome than non-ICWA child welfare matters. Indeed, when states properly apply ICWA, ICWA represents some of the best practices in child welfare.
Conclusion
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? Here, I provide a list of suggestions.
1. Talk about ICWA!Many of the works I cite here, especially podcasts like This Land, the documentary Blood Memory, or the popular news media articles, are easily accessible and digestible. These items are made for the general audiences. Should Brackeen hold that ICWA is unconstitutional on any ground, a conversation on ICWA is still warranted in our family law classrooms because it is a child welfare best practice as it always has been.
2. Review Turtle Talk blog! This blog is run by Indian law professors with the goal of ensuring all case law and stories involving Indian law are accessible to the public and not hidden behind a paywall. The blog posts multiple times a day including things like articles, court filings, court opinions, and more. Ongoing and past ICWA litigation will be there, and links to documents from the different stages of court proceedings in the Brackeen case (district court, Fifth Circuit, Supreme Court) are posted there.
3. Identify and connect with local tribal legal departments! To be clear, this is not a suggestion to conduct voluntourism, but many tribal attorneys are looking to connect with local law schools. Tribal attorneys are invaluable resources, and they may be able to connect you with ongoing family court projects in tribal court, such as wellness court projects. While not the focus of this article, most tribal courts hear a wide range of family law matters like divorce, child custody, visitation, and more.
4. Encourage your school’s admissions team to recruit more American Indian students! Again, this is about family law—but we know an issue with the legal academy at large is the vast underrepresentation of American Indians. One way to combat erasure is to get these students in the door and let them speak for themselves. After all, today’s students will be tomorrow’s alumni, practitioners, and academics.
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.
