Can You Even Speak About ICWA?

by Timothy Sandefur
October 1, 2018

Minnesota lawyer Mark Fiddler is among the nation’s leading experts on—and most insightful critics of—the Indian Child Welfare Act (ICWA), the federal law that subjects Indian children to a separate, less protective set of legal standards when it comes to child welfare, foster care, or adoption. And he’s a nationally respected adoption lawyer, one of the team of lawyers who argued the “Baby Veronica” case in 2013—one of only two Supreme Court cases to address ICWA. Fiddler was one of Minnesota’s Attorneys of the Year in 2013, and he’s a fellow of the American Academy of Adoption Attorneys. He’s also a member of the Turtle Mountain Band of Chippewa Indians.

Who better situated, then, to present a class on ICWA and the “Baby Veronica” case for lawyers needing “continuing legal education” credits? Continuing legal education classes are meant to provide a variety of perspectives and insights on contemporary legal issues, and just about anyone is allowed to present them, on almost any topic relevant to the practice of law.

But when tribal government attorneys found out that Fiddler was going to do a presentation in October, they decided to put a stop to it. A few days ago, representatives of the Minnesota American Indian Bar Association (MAIBA) protested to the state bar’s executive director, demanding that it be canceled and rescheduled at a different time that the Indian Bar Association approved. Last Thursday morning, the Minnesota Bar Association’s “Diversity and Inclusion Director” wrote to announce that Fiddler’s presentation would be indefinitely postponed “out of respect for the concerns expressed by MAIBA representatives” and in order to “to ensure a fair and balanced presentation.” That, of course, is bureaucrat-speak for the censorship of badthink.

Just days ago, the Cato Institute hosted a panel on ICWA at which critics and defenders of the law were allowed to express their views; the exchange was civil and educational. But it appears that the Minnesota American Indian Bar Association doesn’t like the idea that one of the state’s leading experts on child welfare law might freely express his opinions about ICWA. It’s a good time to remember that censorship is not an argument—it’s only a confession that one’s beliefs can’t withstand scrutiny.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.