Ramsey County Law Library Blog

Earlier this year the New York Times reported on a case pending in the U.S. Supreme Court.  In 1978 The Indian Child Welfare Act (ICWA) was passed to stop what had previously been the large-scale practice of separating Indian children from their parents and placing them in non-Indian homes. The Court is now considering whether the ICWA allows for a Cherokee father of a child to challenge the adoption of a child by its non-Indian biological mother. The  father in this case had previuosly renounced his parental rights and refused financial support to the child. The child was then raised by the adoptive parents in South Carolina until she was 27 months old, at which point the biological father then challenged the adoption. South Carolina state law does not allow a father to challenge adoption proceedings  once he has surrendered parental rights (the current law in 30 states). How this fits into the law of the requirements of the current ICWA is now being examined by the Court. You can read about the story here and here.

The Ramsey County Law Library has recently added two books relevant to this subject. First, The Indian Child Welfare Act Handbook is a comprehensive source to assist lawyers and other professionals involved with the interests of Indian children. Case law addressing the correct application of the ICWA has burgeoned tremendously in recent years. Despite increasing discrepancies in court rulings, Congress has not amended or clarified the law despite several proposed bills to do so. Yet both federal and state laws and their application have changed the legal landscape in the areas of child welfare practices and child custody proceedings involving Indian children. The Handbook examines these developments and also incorporates over 500 court decisions released since the original was published in 1995.

Also, The Rights of Indians and Tribes has been the go-to resource for Federal Indian Law since it was first published in 1983. With its user-friendly question-and-answer format, the book addresses legal issues facing Indians and Indian tribes today, including tribal sovereignty, the federal trust responsibility, the regulation of non-Indians on reservations, Indian treaties, the Indian Civil Rights Act, the Indian Gaming Regulatory Act, and the ICWA. This book is a useful tool for tribal advocates, government officials, students, practitioners of Indian law, as well as the general public.

TODAY is the 50th anniversary of the U.S. Supreme Court decision in the case of Gideon v. Wainright, the case holding that criminal defendants facing significant jail time have the constitutional right to legal representation. This is the tenant that our modern system of providing public defenders to indigent suspects is based upon. Unfortunately, the modern reality of overbearing public defender case loads (due in part to the “war on drugs”) has eroded this right and the constitutional foundation under it. This impending anniversary was the impetus behind just-released book Chasing Gideon: The Elusive Quest for Poor People’s Justice by Karen Houppert.

The book asks whether true justice means that “we will pay lip service to the notion that everyone has a lawyer to represent them in court?” or simply that “we will provide a warm body in a suit and tie to stand next to the defendant?” (Intro p. x-xi) It scrutinizes the heartbreaking facts behind several public defender-represented defendants, whose “guilt” was rather questionable at best. It also looks at the exhausting efforts made by the public defenders in defending these cases. Typically, “inadequate funding and troublesome limits on indigent counsel have made the promise of effective assistance of counsel more myth than fact, more illusion than substance.” (p. 48)

One public defender was used to the plea bargaining ritual that regularly took place between her department and the prosecutors, but then noticed that the “reasonable” offers started disappearing. It turned out that the department numbers had shifted so that there were 38 prosecutors to 17 public defenders (upon which 80% of criminal defendants relied), thus skewing the previous bargaining positions. Similarly, Houppert tells how “…public defender systems regularly hemorrhage attorneys who left in a blaze of fury or slowly simmered with resentment until they burn out after a few years.” (p. 250) Finally, the book makes the provocative suggestion that ”…while there are many contributing factors leading to increased incarceration, underfunding of public defender offices may be one of these.” (p. 236)

This page-turning read is most appropriate for Gideon’s anniversary, and available for checkout at our library. See also this feature article in today’s New Yor Times, which considers Gideon not only in its original criminal context, but also what it holds (or doesn’t hold) in the civil context.