Lawyering the Indian Child Welfare Act
44 Pages Posted: 25 Oct 2021 Last revised: 4 Aug 2022
Date Written: October 20, 2021
This Essay 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 where 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 Essay 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.
Keywords: Brackeen v. Haaland, Indian Child Welfare Act, professional responsibility, legal ethics, Supreme Court, anti-commandeering, equal protection
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