From MSU Law
For the past six years, the director of the Indian Law Clinic at Michigan State University College of Law, Kathryn Fort, and her clinical students have worked alongside Tribal Nations on Indian Child Welfare Act (ICWA) cases. The work of the clinic has had a significant impact on one of the Supreme Court’s many decisions this year, Haaland v. Brackeen.
Haaland v. Brackeen was brought by the states of Texas, Louisiana, and Indiana, and individual plaintiffs, seeking to declare ICWA unconstitutional after multiple cases of Native American children were separated from their tribes and adopted by non-Indian couples. In 1978, U.S. Congress enacted ICWA to protect American Indian children from removal from their tribes to be adopted by non-Indian people.
“The case involved a child who comes from the Navajo and Cherokee Nations. We have represented both Nations before and have good relationships with them,” Fort said.
“When it became clear the case was going to be in federal court for review of the constitutionality of ICWA, the clinic got involved. The parties to this case included foster parents, the states, and the federal government, but no tribes were involved. The clinic spent time talking to different tribes and organizations to determine what should happen. In the end, the clinic, along with Kilpatrick Townsend and Jenner & Block, represented four tribes that intervened as parties to the case.”
Fort says that for those on the outside, it may not be a major issue to see an Indian child be raised by someone who is not a part of a Tribe. Tribal Nations consider raising children as a tribal responsibility, with active participation of extended family members. Tribal elders pass on the tribe's history and traditions to children through a rich inheritance of cultural practices, religion, and language.
“Children deserve to know where they’re from,” Fort said. “They need to know their culture, religion, language, and their people; they deserve to have that knowledge. Being in foster care can be traumatizing. Something happened in their past to require foster care, so being connected to their family in some way can provide resiliency.”
Indian Law Clinic students at MSU have played a significant role in ICWA cases and extending support to those in need. Fort emphasized that the work could not have been done on both the important state appellate cases and the Supreme Court case if the students were not assisting.
While current MSU Law students were not involved with the Supreme Court case firsthand, they participated in ICWA-related appellate cases on the state level. They gained the experience of how court decisions can affect tribes and how properly to assist those in need in these communities.
“Through the clinic, I was able to see firsthand how critical ICWA is for tribal children and how devastating it would be for tribal communities [to lose the law],” said Breanna Bollig. “Professor Fort did a wonderful job in not only teaching how ICWA should be applied in child welfare cases, but also the unique challenges that come with defending a law that is severely underenforced and frequently under constitutional attack.”
“I learned when dealing with an area of law with such a broad scope, it is important to keep in mind the big picture,” said Ryan Voisich. “Remember that there are real, personal stakes involved in litigation. In law school, we often gloss over the personal impact of judicial decisions so we can comprehend the broader doctrinal implications.”
For some students, they have personal reasons for their involvement. Robin Bilagody knows firsthand how important it is to protect tribes in this country as she herself is a tribal citizen and works to protect people from similar backgrounds.
“As a Native American law student from a tribe, being able to serve tribal communities in times of need means I am helping in furthering tribal sovereignty,” she said. “Coming from a tribal reservation, I understand firsthand the legal issues that many Native Americans face. It is important that others are aware of the constant attack on tribal sovereignty and legal issues that impact us.”
The Haaland v. Brackeen decision was handed down on June 15, 2023. In a 7–2 ruling, the Supreme Court held that ICWA is constitutional and consistent with Congressional powers. As the ruling came in, many students from the clinic, past and present, contacted Fort to celebrate all the hard work that has been done over the years.
“It was relief and then shock,” she said. “I got a ton of emails and texts from students and faculty, and it was a complete relief to get the win. I was able to spend the summer working on an appeal in a state court on behalf of a tribal client defending ICWA.”
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