LAWYERING THE INDIAN CHILD WELFARE ACT.

• Author: Fletcher, Matthew L.M.

TABLE OF CONTENTS INTRODUCTION I. A BRIEF HISTORY OF INDIAN LAWYERING II. LAWYERING INDIAN CHILD WELFARE CASES A. Tribal General Counsel B. Tribal Prosecutors, Presenting Officers, and Others C. Defenders, Legal Services Lawyers, and Law School Clinics D. Outside Litigation Firms E. Public Interest Litigation Organizations III. THE INDIAN CHILD WELFARE ACT A. Overview of the Act B. Realism in Lawyering Indian Child Welfare Matters IV. THE CONSTITUTIONAL CHALLENGES TO THE ICWA A. Congressional Authority Under the Commerce Clause B. Equal Protection C. Tenth Amendment Commandeering D. Nondelegation V. LAWYERING THE CONSTITUTIONALITY OF THE ICWA Before The Supreme Court A. Abusive Procedural Strategies B. Abusive Media Strategies C. The Judiciary's Institutional Capacity Issues CONCLUSION INTRODUCTION

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

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

This Article describes how the statutory structure of child welfare laws enables lawyers and courts to exploit deep-seated stereotypes about American Indian people rooted in systemic racism to undermine the enforcement of the rights of Indian families and tribes. Even when Indian custodians and tribes are able to protect their rights in court, their adversaries use those same advantages on appeal to attack the constitutional validity of the law. The primary goal of this Article is to help expose those structural issues and the ethically troublesome practices of adoption attorneys as the most important ICWA case in history, Brackeen v. Haaland, reaches the Supreme Court. (6)

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

1. A BRIEF HISTORY OF INDIAN LAWYERING

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

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

   Civil rights lawyering for Indians is also strange in that many claims are brought by tribes rather than individual Indians. Indian tribes are collectives, after all, and tribal governments often possess interests that overlap with the interests of individual tribal members. Perhaps the best example of this phenomenon involves treaty rights to hunt and fish. The tribe is the signatory to the treaty and the possessor of the right, (13) but state and local governments violating the treaty right do so by regulating or prosecuting individual Indians. (14) Similar examples include tax (15) and jurisdictional (16) disputes, where the tribes often step in to litigate on their own behalf, which usually benefits individual tribal members. These are often enormous disputes, the types of Indian law cases that reach the United States Supreme Court.

   Individual Indians bring civil rights claims, too, but these claims definitionally differ from tribal rights claims and rarely reach the Supreme Court. (17) These claims tend to involve voting rights claims against state governments (18) or claims against tribal governments. (19) Section 1983 claims by Indian people tend to involve prisoner rights. (20) Civil rights claims by individual Indians tend to be subsumed into claims brought by tribes as noted above or, in some instances, raised by tribes acting as parens patriae on behalf of individual Indi ans. (21)

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

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

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

2. LAWYERING INDIAN CHILD WELFARE CASES

   Far and away, the majority of civil rights cases involving Indians and tribes arise under the ICWA. (35) Weirdly, few observers think of these cases as civil rights actions. The ICWA is the most important federal civil rights statute enacted by Congress to protect Indians and tribes specifically. Congress found that "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." (36) Congress was also "alarm[ed]" (37) to find that 25 to 35 percent of Indian children had been removed from their homes by state courts, state agencies, and private entities. (38) Due process was virtually nonexistent for Indian parents and custodians; for example, states rarely afforded counsel to indigent parents. (39) Congress exercised its power through the ICWA to enhance the individual rights of Indian people (40) and the rights of Indian tribes. (41)

   However, as Part III details, the ICWA can be very difficult to enforce. (42) The ICWA requires state actors to do more to rehabilitate Indian parents and reunify Indian families than state law requires normally. (43) Many state actors simply...