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From 2013 to 2023, the Indian Child Welfare Act (ICWA) was challenged in the courts more than the Affordable Care Act. This Article lays out the history of the fight over ICWA from Baby Girl to Haaland, from my perspective as a clinical professor who has been involved with every major ICWA case since 2013, as well as my observations about why ICWA was so vulnerable to an organized litigation attack despite continued bipartisan and widespread support of the law.
INTRODUCTION
Ten years ago, on June 23, 2013, the Supreme Court released a decision interpreting the Indian Child Welfare Act of 1978 (ICWA).1 Adoptive Couple v. Baby Girt was a devastating loss for a Cherokee father, his daughter, and all of Indian Country. The decision led to a decade of anti-ICWA challenges in state and federal court culminating in Haaland v. Brackeen.3 As of this writing, Brackeen sits in front of the Supreme Court. Oral arguments were held on November 9, 2022, with a decision expected sometime in 2023.4 The case has been in the federal court system for more than five years-which means it only took five years for those arrayed against ICWA in 2013 to find a vehicle to return to the Court. This is a stunningly fast timeframe, given the last time the Court took an ICWA case was in 1989.5
I became a lawyer in 2006.1 wrote my first ICWA appellate brief with Matthew L.M. Fletcher6 in 2009 on behalf of the American Indian Law Section of the State Bar of Michigan in the Michigan Supreme Court.7 As a result of that work, I started researching the legal arguments of ICWA, reading and classifying appeals and determining who was bringing ICWA appeals and why.8 Since then, my clinic has been lucky enough to represent tribes on a wide range of ICWA appeals across the country. Because of the success of that work, I started the ICWA Appellate Project with Casey Family Programs,9 representing tribes in appeals and advising tribes on how to avoid them. As a result, the clinic has represented tribes in some capacity in all the major ICWA appellate cases since the Baby Girl decision.
When I started working on ICWA appeals, I believed I would be spending...