From Michigan Law
Michigan Law Professor Matthew Fletcher’s work was cited in two US Supreme Court opinions—Haaland v. Brackeen and Lac Du Flambeau Band Of Lake Superior Chippewa Indians v. Coughlin — issued June 15.
In Haaland, a case that arose from three separate child custody proceedings, the Court held that Congress had the authority to enact the Indian Child Welfare Act.
In a concurring opinion authored by Justice Gorsuch, Fletcher's work was cited heavily, including “Indian Children and the Federal–Tribal Trust Relationship”; “Lawyering the Indian Child Welfare Act” was cited multiple times.
Justice Gorsuch also cited Fletcher in his dissent In Lac Du Flambeau Band Of Lake Superior Chippewa Indians v. Coughlin. There, the Court held US bankruptcy code abrogates the sovereign immunity of all governments, including federally recognized Indian tribes.
Justice Gorsuch, however, took the view that in order to "vitiate[] tribal immunity," Congress must "unequivocally express its intent to achieve that result "because the bankruptcy code does not expressly mention Indian tribes, the Court's reasoning fell short."
Fletcher is the Harry Burns Hutchins Collegiate Professor of Law. He teaches and writes in the areas of federal Indian law, American Indian tribal law, Anishinaabe legal and political philosophy, constitutional law, federal courts, and legal ethics. He also sits as the chief justice of the Pokagon Band of Potawatomi Indians, the Poarch Band of Creek Indians, and the Grand Traverse Band of Ottawa and Chippewa Indians.
In addition, he is an appellate judge for several other American Indian tribes.
He recently answered five questions about the rulings and how his research informed them.
1. In a nutshell, what is the Indian Child Welfare Act?
The Indian Child Welfare Act (ICWA) is a civil rights statute designed to remedy the mass removal of American Indian children from their homes by states, religious organizations, and other private parties for placement in foster care or adoption, almost always without a modicum of due process.
In the middle part of the 20th century, about one-third of all Native children had been removed and placed with non-Indian homes. ICWA required, among other things, state courts to defer to tribal court jurisdiction whenever possible, strengthened the procedural rights of Indian custodians and tribes, and heightened the burden of proof for the termination of Indian parents’ rights.
ICWA allows tribes to intervene in state court child welfare and adoption proceedings involving Indian children, offer services to state agencies and Indian families with an eye toward reunifying those families, and seek to transfer cases to tribal court whenever tribal jurisdiction is best.
2. When and how did the ICWA become a focus of your legal scholarship, and how does your work as a tribal judge influence that legal scholarship?
ICWA was always a part of my scholarly agenda, largely because ICWA is such an important part of virtually every Native person’s personal history. My writing partner and spouse Wenona Singel can trace the removals of her ancestors from the 1830s all the way to the 1970s. Our children are the first generation of children in her family to not be removed since the 1830s.
I began to focus on the constitutional defense of ICWA intensely after a 2013 Supreme Court decision, Adoptive Couple v. Baby Girl, where the Court questioned the constitutionality of the Act. Within a couple years, constitutional challenges to ICWA were swarming the courts.
Occasionally joined with Singel, who was using other media to tell her family’s story, I began to write systematically on each constitutional issue in an effort to push back on the narrative that ICWA was somehow constitutionally suspect. I focused on congressional Indian affairs powers, anti-commandeering and federal preemption, equal protection, and non-delegation.
ICWA doesn’t apply in tribal courts, so my work as a tribal judge is more about educating state court judges and state and federal policymakers about tribal justice systems, tribal child welfare services, and tribal sovereignty generally. Many states and local jurisdictions have excellent working relationships with tribal nations, but many do not.
Ignorance and outright racism remain serious barriers to compliance with ICWA.
To be frank, state child welfare systems are usually substandard and underfunded, making it harder for tribal nations to work with them. Luckily, that advocacy is working. Michigan and 14 other states have codified ICWA as state law (modified to meet specific states’ interests), and many other states have enhanced their dedication to compliance with ICWA.
I have presided over a small number of tribal court Indian child welfare matters. These are the hardest, most tragic cases we can see.
The cases I see tend to be the hard cases where the state court dragged its foot on transferring the cases to tribal court, undermining the efforts to reunify families and find a safe and healthy permanent placement for those Native kiddos.
3. How was your scholarship cited in the Brackeen ruling, and what are the implications of the ruling?
Justice Gorsuch wrote a concurrence that delved very, very deeply into the history of Indian affairs. He repeatedly cited a paper I wrote with Singel published in the Nebraska Law Review, an article tracing the long history of federal interventions into the lives of Indian children going all the way back to the Revolutionary War through the enactment of ICWA.
The goal of that paper and Justice Gorsuch’s concurrence was to establish that the original public understanding of the congressional Indian affairs powers included Indian child welfare. Justice Thomas wrote a lengthy dissent that cited our Nebraska Law Review paper, too, focusing on the warlike character of Indian people in an apparent effort to undercut Gorsuch’s historical survey.
Singel and I also published a paper in the Michigan Law Review, “Lawyering the Indian Child Welfare Act,” designed to show how ICWA’s opponents exploited structural weaknesses in the statute and state courts overwhelmed with child welfare cases, often unethically. Justice Gorsuch quoted that paper for the proposition that state courts and child welfare advocates often continue to oppose compliance with ICWA.
Finally, Justice Gorsuch cited a paper I published with a former student, Leah Jurss, exploring the historical record of conflict during the early period of the United States between settlers and Indians and Congress’ role in responding to those issues.
The ramifications of Brackeen are enormous.
Texas, the Brackeens, and the other plaintiffs were challenging the very foundation of congressional power in Indian affairs, the limited role of state governments in Indian affairs under the Tenth Amendment, tribal sovereignty in relation to state court ICW matters, and—perhaps most importantly—whether federal Indian law enactments violate the equal protection clause of the 14th Amendment and the equal protection component of the 5th Amendment. If the plaintiffs won on any issue, whole swaths of Title 25 could be subject to constitutional challenge, starting with Indian country criminal jurisdiction.
As it stands, the Court declined to address the equal protection and non-delegation issues and definitively rejected the other challenges.
4. How was your scholarship cited in the Lac Du Flambeau dissent, and what are the implications of the ruling?
Justice Gorsuch cited a paper of mine titled “Tribal Consent” for the proposition that Indian tribes have not always been territorially included within the United States, important for showing that federal Indian affairs powers can extend a bit beyond the boundaries of the United States.
I had also filed an amicus brief in the matter arguing that an Article III court should defer to congressional powers in Indian affairs as a function of history and constitutional structure. Unfortunately, he wrote in dissent.
The Lac du Flambeau decision held that the Bankruptcy Act abrogated tribal sovereign immunity in federal bankruptcy matters, despite the fact that the Act does not mention Indian tribes at all.
Instead, the Court relied on catchall language in the Act abrogating the sovereign immunity of all “domestic and foreign governments.”
The ruling is probably correct as a matter of bankruptcy policy (I am no expert on bankruptcy), but as a matter of federal Indian law, it leaves much to be desired. Normally the rule on tribal immunity is that Congress does possess the power to abrogate tribal immunity but it must make its intent to do so clear.
Here, the eight-judge majority read congressional intent into the statute. No member of Congress, after all, even mentioned Indian tribes in the legislative history.
The implications of the ruling outside of bankruptcy are probably fairly limited, unless the Court uses the reasoning here as a jump-off point for loosening its tribal immunity jurisprudence. I suspect that this decision will be limited to this particular statute, but who can be sure?
5. Did you know that your work was being cited by the Court, or did you learn of it when the opinions came out? What was that moment like for you?
I learned about the citations when the opinions came out. I was far more interested in the outcomes than whether any opinion would cite my work, but I confess I had hoped very much to be cited in Brackeen.
My wife and I spent nearly a decade writing article after article defending ICWA on various constitutional grounds and otherwise advocating for Indian country to pay attention to the intense and unprecedented challenges to Indian law. Plus, I had been cited a couple dozen times by the Fifth Circuit sitting en banc in this case for many of these same propositions.
It was personally gratifying to see our names there as part of a decision that will probably be the most important case of our lifetimes. I happened to be in Albuquerque at the Pre-Law Summer Institute for American Indian Students, so I was reading the opinions as they came out in my hotel room.
I may have pumped my fist a little bit as I read through the opinions. Singel and I texted each other a little fist bump.
It was a good day.
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