IndyBar: National American Indian Heritage Month: Federal Indian Law Issues in Indiana

By Travis Lovett, Krieg DeVault LLP

The month of November is recognized as “National American Indian Heritage Month.” Indiana is the ancestral homeland to many Indigenous communities, including the Miami Nation of Indians of Indiana and the Pokagon Band of Potawatomi Indians, both of which still maintain a presence in Indiana today. Sometimes, Indiana legal practitioners may face issues that involve Native Americans or an Indian tribe. Here are a couple of examples.

A federal Indian law issue that arises in the state of Indiana is family law proceedings that trigger the Indian Child Welfare Act, 25 U.S.C § 1902 (ICWA). This issue arises from time to time because there are many children in the state of Indiana who are citizens or are eligible to become citizens of a tribal nation living off the reservation. ICWA is a federal law, enacted by Congress in response to the mass removal of Indian children from tribal communities into nontribal public and private agencies. ICWA requires states to give notice, the right to intervene and ultimately custodian preference to Indian relatives or the tribe when an Indian child is the subject of an adoption proceeding. States must follow procedures and hierarchical preferences set forth under ICWA unless a state court finds “good cause” to depart therefrom. Recently, the state of Texas (along with Louisiana and Indiana) argued that ICWA was unconstitutional on multiple grounds, including that ICWA imposes burdensome procedures for states to follow. Additionally, the states argued that ICWA uses racial classifications that unfairly and unlawfully prevent non-Indian families from adopting Indian children. It is important to recognize that “Indian” for purposes of ICWA depends on citizenship in a tribal nation, not race or Indian ancestry. Arguing that ICWA creates an unfair racial classification blurs this distinction.

The state of Indiana eventually withdrew from the case, but the Supreme Court of the United States held that ICWA is constitutional, finding among other things that Congress is the legislative body with authority to legislate over Indian affairs, and that ICWA does not impermissibly tread on the states’ authority over family law. See Haaland v. Brackeen, 599 U.S. 255 (2023).

Another example of how Indian law can arise in Indiana is through partnerships and contractual relationships. This is particularly important when negotiating with a federally recognized tribe, such as the Pokagon Band. The Pokagon Band, as a sovereign nation, is immune from suit unless there is clear and explicit waiver of sovereign immunity included in the contract. When a tribe agrees to a mandatory arbitration provision, courts have held that a tribe waives its sovereign immunity. However, this precedent is currently at the center of ongoing litigation that is currently working its way to the Supreme Court of the United States. See Bird Industries v. Tribal Business Council of The Three Affiliated Tribes of the Fort Berthold Indian Reservation, No. 22-2584, 2023 WL 2486077 (8th Cir. Mar. 14, 2023), cert. denied, No. 23-19, 2023 WL 6378488, (Oct. 2, 2023). While the Pokagon Band is the only federally recognized tribe in the state of Indiana, there are many financial institutions that may lend money to the Pokagon Band or other Indian tribes for economic development purposes. It is important to bear in mind the issue of sovereign immunity when entering a transaction or other contractual relationship with an Indian tribe.

If you are interested in ways to celebrate National American Indian Heritage Month, IndyBar will be posting different ideas on its social media accounts all month long. You can also visit Connor Prairie and explore its grounds and exhibits. For law students and law faculty, Indiana University will host some fun programs/promotions that you may be able to join. Join us in celebrating the Indigenous peoples that were here before us in this great state.•