191
After Brackeen: Funding Tribal Systems
KATHRYN E. FORT*
Introduction
The purpose of the Indian Child Welfare Act1 was to allow tribes to make
decisions for their own families, rather than state courts and agencies. Again
and again, tribal leaders stated that they knew what to do for their tribes.
Lost in our current ghts over ICWA in the Supreme Court is the history of
tribal leaders trying to secure funding for tribal systems of child welfare.2
There are pages of testimony often overlooked today where tribal leaders
1. 25 U.S.C. §§ 1901–63.
2. To Establish Standards for the Placement of Indian Children in Foster or Adoptive Homes,
to Prevent the Breakup of Indian Families, and for Other Purposes: Hearing on S. 1214 Before
the S. Select Comm. on Indian Affs., 95th Cong. 163–65 (1977) [hereinafter 1977 Hearings]
(statement of Ramona Bennett, Chairwoman, Puyallup Tribe).
* Kathryn “Kate” E. Fort, J.D., is the Director of Clinics at Michigan State University College
of Law, where she runs the Indian Law Clinic. She has taught the Indian Law Clinic for 17 years,
and for the past 10 years she has directly represented tribes in complex Indian Child Welfare Act
litigation across the country in state and federal courts. She represents the tribal intervenors in the
U.S. Supreme Court case Haaland v. Brackeen. In addition, she works with The Whitener Group,
a Native-owned consulting rm that contracts with the Bureau of Indian Affairs to conduct tribal
court assessments. For the rst time in 2016, the Bureau allowed tribes in Alaska to access these
assessments, and since that time Professor Fort has assisted with nearly 100 Alaska assessments,
as well as several assessments in the Pacic Northwest. She has traveled throughout the Yukon
Kuskokwim Delta, the Copper River Delta, the Mat-Su Region, and Southeast Alaska working
with tribal communities to further develop their tribal justice systems.
Professor Fort thanks Solangel Maldonado for the invitation to contribute to this edition.
Special thanks to Lauren Van Schilfgaarde, UCLA, for the late-night talk at an annual National
American Indian Tribal Court Judges Association conference that led to this work. Special thanks
also to Neoshia Roemer, the former Clinic staff attorney, and Cassondra Church (MSU Law),
Logan Miller (UCLA Law), and William Tentindo (UCLA Law), whose research as students
during the particularly difcult 2020 COVID year led directly to the completion of this article.
Thanks to the partnership between MSU College of Law Indian Law Clinic and UCLA’s Tribal
Legal Development Clinic for making the research possible.
Published in Family Law Quarterly, Volume 56, Numbers 2 & 3, 2022–2023. © 2023 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
192 Family Law Quarterly, Volume 56, Numbers 2 & 3
and tribal child welfare workers tried to pin down the section of law that
would fund their systems and ensure the purpose of ICWA wasn’t lost.3
The ability for tribal governments to fund their own tribal child welfare
systems is a critical component of promoting tribal sovereignty, as well
as ensuring Native children and families receive culturally appropriate
services. The issue is not whether tribes want to provide these services to
their communities; it is often whether they have the necessary resources and
access to implement these services. Under the current U.S. child protection
funding model, tribes are faced with challenges and barriers that prevent
them from accessing the necessary funding needed.4 Given that only
3 percent, or 18 out of 574 federally recognized tribes, have successfully
completed the requirements to the federal government’s satisfaction to
access the primary source of federal child protection funding, a new
approach is desperately needed.5
The current state child welfare system in the United States is broken.
Tribes have a unique opportunity and ability to use and create systems
that work for their communities. They are not currently bound to follow
the system created for states. But today tribes must follow that system to
3. Problems That American Indian Families Face in Raising Their Children and How These
Problems Are Affected by Federal Action or Inaction: Hearing Before the Subcomm. on Indian Affs.
of the S. Comm. on Interior & Insular Affs., 93d Cong. 7, 9, (1974) [hereinafter 1974 Hearings]
(statement of William Byler, Exec. Dir., Ass’n on Am. Indian Affs.); id. at 35–36 (statement of
Bertram Hirsch, Staff Att’y, Ass’n of Am. Indian Affs.); id. at 104 (statement of Dr. James H.
Shore, Psychiatry Training Program, Portland, Or.); id. at 157 (statement of Richard Lone Dog,
Rosebud Detention Ctr., Rosebud, S.D.); id. at 168–70 (statement of Betty Jack, Chairman, Bd.
of Dirs., Am. Indian Child Dev. Program, Milwaukee, Wis.); id. at 219 (statement of Dr. Carl
Hammerschlag, Phoenix, Ariz.); id. at 371 (statement of Thomas Peacock, Dir., Indian Youth
Program, Duluth, Minn.); 1977 Hearings, supra note 2, at 290 (letter from Goldie M. Denney,
Dir., Soc. Servs., Quinault Indian Nation); To Establish Standards for the Placement of Indian
Children in Foster or Adoptive Homes, to Prevent the Breakup of Indian Families, and for Other
Purposes: Hearing on S. 1214 Before the H. Subcomm. on Indian Affairs and Public Lands 78
(1978) [hereinafter 1978 Hearings] (statement of Faye LaPointe, Coordinator of Social Serv, for
Child Welfare, Puyallup Tribe of Wash.); id. at 99 (statement of Donald Reeves, Legis. Sec’y,
Friends Comm. on Nat’l Legis.); id. at 109 (statement of Elizabeth Cagey, Admin. Assistant,
Tacoma Urban Indian Ctr.); id. at 114–15 (statement of Mike Ranco, Exec. Dir., Health & Soc.
Serv., Cent. Me. Indian Ass’n).
4. See infra Part III.
5. As of January 2022, the U.S. government recognized 574 Indian tribes. Indian Entities
Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs,
87 Fed. Reg. 4636 (Jan. 28, 2022). As of July 2021, 17 tribes had approved Title IV-E plans. Tribes
with Approved Title IV-E Plans, chilD.’s BuReau, aDmiN. FoR chilD. & Fams., u.s. DeP’t oF
health & hum. seRvs. (current as of July 1, 2021), https://www.acf.hhs.gov/cb/grant-funding/
tribes-approved-title-iv-e-plans. The author is aware of one more that is not yet on the list, Kenaitze
Indian Tribe, making it 18 total.
Published in Family Law Quarterly, Volume 56, Numbers 2 & 3, 2022–2023. © 2023 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
After Brackeen 193
access signicant funding.6 That system incentivizes breaking up families
and placing children in care. Tribal systems disrupt that understanding of
care and use non-adversarial healing to wellness models to better serve
their families.7 They should receive the funding to do so.
Haaland v. Brackeen,
8
a challenge to ICWA that is currently pending
before the U.S. Supreme Court, is a direct result of a state system privileging
removal and placement with stranger foster care, as opposed to kinship
or relative care. Indeed, the challenges to ICWA are often a result of
this system. This article explains the challenges and then identies the
limitations and hurdles tribal governments face when attempting to secure
funding for their own tribal child welfare systems through the current child
protection framework. Additionally, this article proposes possible funding
solutions for expansion in future articles. Part I of this article will discuss
ICWA and the current Brackeen case. Part II will describe how the child
protection system is funded in the United States, while Part III describes
how tribal governments currently fund tribal child welfare systems in Native
communities. Part IV will succinctly propose potential solutions for how
tribal child welfare systems could be funded under either ICWA’s provisions
or a self-governance model.
I. ICWA and Brackeen v. Haaland
In 2013, Indian Country was rocked by the Supreme Court decision in
Adoptive Couple v. Baby Girl.9 Holding that certain ICWA protections did
not apply to the biological daughter of a citizen of the Cherokee Nation,
the U.S. Supreme Court overturned the South Carolina Supreme Court’s
holding that ICWA provided protections to her father.
10
After a few months
of back and forth at the state and tribal court levels, the father voluntarily
and tearfully gave up his child to the adoptive couple demanding her.11 That
6. See infra Part III.
7. See t
RiBal
l
aW
& P
ol
’
y
i
Nst
., t
RiBal
h
ealiNg
to
W
ellNess
c
ouRts
: t
he
k
ey
comPoNeNts (2d ed. 2014) (Typically called “drug courts” in state systems, healing to wellness
courts incorporate current addiction science, a team model, and signicant training to address the
issues that brought the individuals to the court in the rst place. This is diametrically in opposition
to traditional adversarial proceedings.).
8. 994 F.3d 249 (5th Cir. 2021), cert. granted sub nom. Cherokee Nation v. Brackeen, 142 S.
Ct. 1204 (2022), and cert. granted, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v.
Haaland, 142 S. Ct. 1205 (2022), and cert. granted, 142 S. Ct. 1205 (2022).
9. 570 U.S. 637 (2013).
10. Id.
11. Heide Brandes, Biological Father, Tribe Give Up the Fight over Baby Veronica,
R
euteRs
(Oct. 10, 2013), https://www.reuters.com/article/us-usa-adoption-southcarolina/
biological-father-tribe-give-up-the-ght-over-baby-veronica-idUKBRE99911B20131010.
Published in Family Law Quarterly, Volume 56, Numbers 2 & 3, 2022–2023. © 2023 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
