Defending Children and Families
“There’s a lot of anxiety surrounding the outcome of this case,” says Gabrielle Apana (3L), referring to the pending US Supreme Court case Haaland v. Brackeen, which involves a challenge to the constitutionality of the Indian Child Welfare Act (ICWA). “ICWA is huge in preserving families and culture to counteract the harm done historically.” In addition to impacting children and families, the case also has the potential to undermine existing legal frameworks related to tribal sovereignty.
As an advanced clinical student in the University of Washington Tribal Court Public Defense Clinic, Apana has experience providing tribal public defender services in child dependency cases. “I didn’t know much about dependency law before I started,” she says. “It’s been life-changing.”
A forward-looking partnership and innovative model for over 20 years, the UW Tribal Court Clinic provides tribal public defender services for cases involving members of federally recognized tribes charged with crimes by the Tulalip Tribes. The clinic also provides these services for the Muckleshoot Indian Tribe, representing parents involved in Youth in Need of Care proceedings.
With years of partnership and experience in child dependency cases, the clinic was invited by Tara Urs, Director of Development and Litigation Strategy of King County Public Defense, to join family advocates across the country in submitting an amicus brief to the Supreme Court in Haaland v. Brackeen. This is in the context of Washington and many other states having enacted similar and complementary laws to ICWA. During the summer of 2022, Co-Director of the Tribal Court Clinic and Assistant Teaching Professor Stacey Lara enlisted Apana’s help on the brief with research, citations and last-minute needs.
Educating from Experience
“One of the goals of our brief is to educate the court on how dependency law works,” says Lara. The lower court cases that led to the Supreme Court hearing Haaland v. Brackeen involved both a private adoption, where one or both parents voluntarily relinquish their parental rights, as well as the more typical ICWA circumstance, which involves the state seeking to remove children from their parents against the parents’ wishes.
“Work on amicus briefs, among many other things, is core to the mission of the UW Native American Law Center and its Tribal Court Clinic,” says Monte Mills, a Charles I. Stone Professor of Law and the Center’s director. “Related to Tribal interests and Tribal sovereignty, Indian law academic folks and law students play a unique role in helping others understand the issues.”
Lara also appreciates how the Tribal Court Clinic exposes law school students to dependency law. “When I graduated from law school, I didn’t know this area of dependency law existed, and many students have this same lack of exposure before they join the clinic,” she says. “One of the greatest endorsements of our work was getting a note from a former student who is now a prosecutor, saying the work she did in the clinic gave her a deeper appreciation for how our clients’ challenges play out, including generational trauma, the practicalities of poverty and what that means for people accessing services.”
In the case of Haaland v. Brackeen, many others are also working on expanding the court’s view in similar ways. Across 21 amicus briefs, many have weighed in on behalf of preserving ICWA, including nearly 500 Tribal Nations, more than 60 Native-led organizations, 85-plus congress members, and more than 25 adoption and child welfare organizations. The hope is that all this input will make a difference. The family defenders brief that the Tribal Clinic worked on was mentioned by the 4th attorney who presented to the court, encouraging the justices to look at it.
“It’s a fundamental right of a Native community to decide where their children are placed in these proceedings,” says Kalae Trask-Sharpe (3L), who also informed the brief as another one of Lara’s advanced students working in the Tribal Court Clinic.
As a Native Hawaiian, Trask-Sharpe appreciates his experiences with the Tribal Court Clinic and seeing the impacts of court cases, laws and policies enacted locally and nationally. “In Hawaii, we don’t fall under the same political structure as the tribes do,” he says. “It’s important to keep an eye on the courts and laws affecting tribal systems.”
Wanting to go into land restoration, he sees how circumstances in one place might be applied in another. For example, Trask-Sharpe talks about supplementing court-ordered requirements for parents with traditional practices. “Instead of so many weeks of AA meetings, they could do traditional healing work like cedar basket weaving,” he says. He’s thinking about how that might work in restoration projects in Hawaii.
“Both Gabrielle and Kalae have very bright futures and were able to provide really meaningful contributions on behalf of clients whose cases they worked on this year,” says Lara.
At a time when more cases like Haaland v. Brackeen are coming before a conservative Supreme court, helping students make connections and deepening the court’s understanding of culturally responsive, multi-dimensional solutions becomes ever-more urgent. “The Muckleshoot Tribal Court System, along with the larger community, considers its children to be its greatest treasure and their greatest responsibility,” Lara says. “They’re working to raise children that are whole, that know their value and the incredible gifts their community can provide them in understanding their history and potential as individuals and as part of a vibrant community.”