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June 15, 2023

Ask the Expert: Supreme Court decision on Indian Child Welfare Act

Kathryn E. Fort, director of Michigan State University’s Indian Law Clinic, represents Native American tribes in Indian Child Welfare Act cases in state and federal court. The most recent case, Haaland v. Brackeen, was argued in front of the Supreme Court of the United States in November 2022.  On Thursday, June 15, the Supreme Court of the United States issued a decision to uphold the Indian Child Welfare Act. Fort answers questions on the decision and Act.

What's your reaction to the decision?

The Supreme Court's decision today is a resounding victory for the Indian Child Welfare Act, for Native families, and for tribal nations. We are pleased to have played an important part in what will surely be one of the most important federal Indian law decision for years to come. The Clinic will continue to represent tribes in ICWA cases in state courts, and this opinion today demonstrates both the importance of our work, and the support for it.

Kathryn Fort
Kathryn E. Fort, director of Michigan State University’s Indian Law Clinic. Courtesy photo.

What is the Indian Child Welfare Act?

The Indian Child Welfare Act, or ICWA, is a law that protects Native children and families who are in the child protection system. It was passed in 1978 in response to compelling evidence of the high number of Native children that were being removed from their families by public and private agencies and placed in non-Native families. The law ensures that Native children are placed with their families when they can’t be with their parents and that the state doesn’t take Native children away indiscriminately. The law also provides protections to Indigenous tribal nations to ensure they aware and engaged in cases involving their families.

Why is the Supreme Court involved with ICWA? 

ICWA has been under aggressive attack by those seeking to undo both its protections and other protections for tribes under our current federal Indian law system. In this case, Haaland v. Brackeen, the state of Texas and three foster families sought federal constitutional review of their state child protection cases in Texas federal court. Through the appeals process, the case came down to the constitutionality of key fundamental principles of federal Indian law that came before the Supreme Court.

What is your role in this case?

I direct the Indian Law Clinic at MSU Law where we directly represent tribes in ICWA cases in state and federal court. Our clinic represents the four intervening tribes in the case: Cherokee Nation, Morongo Band of Mission Indians, Oneida Indian Nation and Quinault Indian Nation. The clinic has been involved in this case since 2017 and has worked on all stages of it.

What are the implications of a decision either way?

A decision not to uphold ICWA would have diminished the protections it provided for Native families and would have caused harm to those families and unpredictability in our child protection systems. The decision was a ringing endorsement of a law considered the “gold standard” in child protection by a host of nonprofits, doctors, social workers, state attorneys general and members of Congress.

What does this mean for the future of Native law and rights?

The court took the opportunity to protect and defend the government-to-government relationship between tribes and Congress. If it choose a different path, there could be a host of negative ramifications.

What drew you to practice this area of law?

I took my first federal Indian law class when I attended MSU Law 20 years ago. The work I’ve been lucky enough to do with tribes and on ICWA has brought me profound personal satisfaction in that the work I do every day is vital and important. This is an area of law underserved by lawyers and I’m proud to do it.


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