I usually teach one of two classes. The first is an experiential learning class we offer as a part of our Indigenous Law Certificate. The second is Advanced Topics in Indian Law. My topic is the Indian Child Welfare Act (ICWA).
Congress passed ICWA in 1978 to address the states' wholesale removals of Indian children from their families. Continuing a process the federal government started during the boarding school era, state social service agencies and courts removed Indian children from their families with no due process and with little reason. Congress heard testimony for years about these practices and constructed a law to combat them that appears simple on its face, but becomes complex quickly. Judge Maldonado at the Little Traverse Bay Bands of Odawa Indians, likens the law to chess--easy to learn, but takes years to master.
The law has two main parts--the jurisdictional and the procedural. Depending on the domicile of the Indian child (who is defined in the law as either a member of a federally recognized tribe, or eligible for membership, and a biological child of a member), a tribe either has full jurisdiction or concurrent jurisdiction with the state. The tribe's interest in the child is at least on par with the interests of the parent and of the child. If the state retains jurisdiction (which may happen for a number of reasons, and can be litigated), there are certain procedural provisions the state must follow. These include a heightened standard of evidence for removal and termination of parental rights, the testimony of a qualified expert witness to the effect that the state provided active efforts to prevent the breakup of the Indian family. The child must be placed with a family that meets certain placement preferences dictated by the law. The only Supreme Court decision on ICWA was a strong endorsement of both the reasons behind, and the requirements of, the law.
ICWA applies to both involunary removals and voluntary adoptions. This second area--when the court must follow certain provisions when parents choose to give a child up for adoption--leads to some of the most contentious litigation. The fact pattern in the Baby Veronica case, now in front of the Supreme Court, where a non-Native mother decides to give up a child for adoption and the Native father and/or tribe objects, can lead to the most difficult of the ICWA litigation.
When I proposed teaching a class on the law at Michigan State, I did some research into how many ICWA cases were appealed in a single year. There are generally between 200-300 on the Westlaw database. But though many cases have been appealed, the Supreme Court has ignored ICWA cert petitions entirely. Except this year, when the Court granted cert in the case--right after I had finalized my syllabus. Which I then changed pretty dramatically. I changed the reading to include the cert petitions and the lower court decision. Usually I require a research paper, but this year I divided the students into groups, and assigned them to be petitioner, respondent, and amici on either side. They have to draft a brief, with each team member (3) picking one portion of the argument. The amici have to figure out their interests, talk with the principal brief writers, and address something that isn't addressed in the principal brief. On the last day of class, the amici become the justices, and the principal teams have to answer their oral argument questions.
Having never done this before, I am not sure how it will turn out. The students seem to appreciate writing something other than a standard law school paper. They know the facts of this case better than I do at this point. They are able to relate key points of law in class back to the case. And given the potential importance of the case, it seemed vital to include it in a fundamental way in the class. It did mean we jumped into the law in the middle with our reading, and then had to track back to cover all of the provisions.
However, if our students are in family law, they are going to run into an ICWA case. And if our students are working for tribes or parents, they will write appellate briefs in an ICWA case. And while it is true most of my students are not likely to practice in front of the U.S. Supreme Court, I have no doubt they will be doing this work in front of various state supreme courts, probably on this very law.