Matthew Fletcher’s work was cit­ed in two US Supreme Court opin­ionsHaa­land v. Brac­k­een and Lac Du Flam­beau Band Of Lake Supe­ri­or Chippe­wa Indi­ans v. Cough­linissued 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, 97, 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 ICWAs 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.