Below is the abstract for “The Indian Child Welfare Act During the Brackeen Years” available for download on SSRN.

From 2017 through 2022, while the Indian Child Welfare Act (“ICWA”) was under direct constitutional attack from Texas, state courts around the country continued hearing appeals on ICWA with virtually no regard for the decision making happening in Haaland v. Brackeen in the federal courts. For practitioners following or working on both sets of cases, this duality felt surreal, as they practiced their daily work under an existential threat.

The data in this article draws from the authors’ previous publications providing annual updates on ICWA appeals, and now includes cases through 2021. It provides a description of appellate data trends across this time period, as well as for each year, while also highlighting key appellate decisions from jurisdictions across the country. Perhaps what this article demonstrates more than any single thing is the amount that ICWA is a part of child welfare practitioners’ daily lives now, in a way that will be difficult to upend, regardless of the Supreme Court’s ultimate decision.



Kathryn E. Fort

Michigan State University College of Law

Kathryn E. Fort is the Director of Clinics at Michigan State University College of Law and runs the Indian Law Clinic, where she teaches the Clinic class and other classes in federal Indian law. In 2015, she started the Indian Child Welfare Act Appellate Project, which represents tribes in complex ICWA litigation across the country.

Adrian T. Smith

Tobin Consulting

Adrian T. Smith is a consultant with Tobin Consulting where she provides consulting to state agencies seeking to comply with ICWA. She also conducts tribal system needs assessments across the Pacific Northwest and Alaska.


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