How An Indigenous Attorney In Minnesota Keeps Trying to Overturn the Indian Child Welfare Act

This story is being co-published with The Imprint, a national nonprofit news outlet covering child welfare and youth justice.

Related: Seneca Nation Elder Reflects on a 51-year Child Welfare Career

Social workers, legal scholars, and Indigenous rights advocates have long described the Indian Child Welfare Act as the “gold standard” for handling foster care cases.

But Minnesota attorney Mark Fiddler has focused much of the past decade on dogged attempts to dismantle the law known as ICWA, which aims to preserve Indigenous families and tribes by prioritizing placements with kin. Fiddler, an enrolled member of the Turtle Mountain Band of Chippewa Indians, has litigated such cases before the U.S. Supreme Court and in numerous state and federal courts nationwide.

Yet the longtime ICWA opponent has a surprising background. He is also the founding director of the Minneapolis-based ICWA Law Center, an influential pro bono firm providing legal services and advocacy to “strengthen, preserve and reunite Indian families, consistent with the mandates and spirit of the Indian Child Welfare Act.”

Since leaving the ICWA Law Center, Fiddler has changed his earlier views, quite dramatically.

In a 2013 interview with Radiolab he described that shift, saying that he used to argue that the unity of Indigenous families was paramount and, if separated, the children “would experience emotional and psychological harm by being raised outside of the culture.”

But a case Fiddler handled in 1994 began to shift his thinking. After he successfully argued in court against an Indigenous girl’s adoption into a white home, she went on to a childhood involving dozens of foster homes and trouble with the law. Keeping her from the loving couple felt like a tragically missed opportunity, he told the radio interviewer.

“In my heart of hearts, I knew that was probably not the right thing for the child. And it always nagged me,” he said. “My personal opinion is that ICWA has outlived its usefulness and causes more problems than it solves.”

Since then, Fiddler has represented white adoptive foster parents in two U.S. Supreme Court cases. The most recent one — Brackeen v. Haaland — challenged ICWA on constitutional grounds, alleging that the 1978 law discriminated against non-Native people. Although neither case overturned ICWA, in both, Fiddler’s clients finalized adoptions of Indigenous children.

Defenders of ICWA challenge his legal assertion. Indigenous rights scholars point to the fact that the law has nothing to do with race because it is based on an agreement between the U.S. government and sovereign tribal nations. Hundreds of tribes, child welfare leaders and state attorneys general have fought to preserve ICWA, which was upheld last summer by a 7-2 majority of the U.S. Supreme Court.

Fiddler’s most recent case is a legal challenge before the Minnesota Court of Appeals. It takes a similar approach to his previous case, describing white foster parents as victims of racial discrimination whose equal protection rights under the constitution have been violated by ICWA’s preferential treatment of tribal caregivers.

His current clients are former foster parents living in Fairmont, Minnesota, with their seven biological children. Kellie and Nathan Reyelts took newborn twins home from the hospital after it was determined their mother had substance abuse issues.

The twins, descendants of Red Lake Nation members, spent more than a year in the Reyelts’ home before their tribe, Miskwaagamiiwi-zaagaiganing, arranged a placement in a “culturally appropriate” household. The move complied with ICWA and the 1985 Minnesota Indian Family Preservation Act, placing the twins, who will turn 2 in April, with their mother’s cousin and older sister.

The Reyelts filed a motion to intervene in the foster care proceeding, arguing in part that the mother of the children wanted them, not a relative, to care for her children. And they are seeking to regain custody.

A central question before the appeals courts is whether the Reyelts have standing to bring their case — in essence, whether the former foster parents have been harmed by ICWA — as well as whether the lower court discriminated against them when it approved placement for the Native American children within their kinship network.

Red Lake Nation and the Minnesota Attorney General oppose the Reyelts’ appeal, and defend the placement preferences for tribal children outlined in state and federal law. They maintain that the children are safe and well in their cousin’s home, and attending tribal events.

Below are Fiddler’s responses to a series of questions about his case and career, exchanged over email. They have been lightly edited for length and clarity.

Why have you filed a case to the Minnesota Court of Appeals that challenges the Indian Child Welfare Act and the Minnesota Indian Family Preservation Act? And why now?

I am filing this case right now because my clients asked me to: they were harmed by ICWA by having medically fragile twins placed into their care removed from them based upon ICWA’s discriminatory preferences for placement with a relative they had never met. The mother was harmed by ICWA because the court disregarded her wishes. The children were harmed by ICWA by being removed from a loving home where they were thriving and attached to their caregivers.

How are your clients, white foster parents Kellie and Nathan Reyelts, alleging they have been harmed?

Because they were denied intervention and placement based upon blatant racial preferences. The U.S. Supreme Court recognized that alleged preferential treatment is an “injury” in the Haaland v. Brackeen case.

In how many cases have you represented plaintiffs like the Reyelts?

Very few clients have the fortitude and faith to endure the suffering of pursuing a case like in Adoptive Couple or Brackeen. Countless clients have wanted me to sue to bring down ICWA, but few have the courage to take on tribes and endure two years or more of litigation — even when the legal help is pro bono. Only one case has challenged ICWA on constitutional grounds, namely Brackeen v. Haaland, where I was co-counsel to white adoptive parents.

You’ve spent decades fighting ICWA — what motivates you in your legal work?

Every week, I am called by potential clients who claim that the Indian child they care for is threatened by removal from their care at the request of a tribe. Hundreds of potential clients have told me this same story. Typically, the clients have had custody of the children for a year or more. What compassionate system removes children from homes where they are thriving just because of their race?

Absent being returned to parents, if a child is considered Indian they should not be consigned to multiple foster placements and additional subsequent removals based solely on the fact they are Indian.

But because of the well-documented shortage of Indian foster homes, Indian children are placed into non-Indian foster homes only to bond and attach after placement there for several months or years because the tribes oppose placement with non-Indians.

It is a system that is set up to harm the very children it was designed to protect. The chronic shortage of Indian foster homes means the system is forever chasing its tail, and it can never catch up with the shortage. I absolutely favor placement with relatives when children are initially removed. But you don’t need ICWA for that.

Why is this cause so important to you?

As an Indian myself, I think ICWA is a gigantic delusion-denial belief system where tribes don’t have to deal with the fact that Indian children are being removed at the same levels as when ICWA was passed in 1978.

It has been a total policy failure. ICWA “treats” the wrong causes of disproportionate placement. And as long as we keep fighting over ICWA, we can keep avoiding the real elephant in the living room — the crisis of risk factors in our own communities, risk factors surely the result of genocidal treatment of Indians and broken treaties.

These tragedies have social effects that can persist for generations. They undermine Indian family structure and cause historical traumas. It can be depressing to think that is what we have to focus on, but it is the truth. We have also survived for hundreds of years. There is hope, too. But it surely isn’t ICWA.