Since posting my offer to help NYU students with their ICWA assignments just 6 days ago, I’ve already had 4 students e-mail me asking for help.  Over 20 people have come across my site while specifically looking for help with the assignment.  (I can tell they didn’t stumble upon while doing regular research, because the searches contain terms like “NYU” and “memo.”)

I imagine in the next few weeks, I’ll be getting some more requests for help, so I’m going to go ahead and post some of the general advice here.  When you kids are further along in your writing, feel free to send me a draft of your brief and I’ll look over it and get back to you.  And, you can always just e-mail me questions if you have an issue that I didn’t address here.

If you’re wondering about my qualifications to give you advice, you’re on the wrong train of thought.  You can get my advice and then exercise your own judgment.  If you mindlessly follow whatever I say, you’re a moron.  But, having said that, I wrote a substantial section of one of the “model answers” for one of the larger lawyering projects (I won’t say which one, because that could jeopardize my anonymity).  And on top of that, I’ve been through the damn ICWA exercise, and won…as the mother-freaking Tribe.  Also, I’m collecting old briefs from some of my classmates, and stitching together a master brief, so you’re getting more than just my experience.

How to Structure The Damn Thing

Factual Background

First, give a really short introduction so the reader has some context.  Then, give a bit of the history leading up to ICWA.  Finally, give the specific facts for this case; explain who is moving for what and why.

Legal Standard

State the four parts of a preliminary injunction.


One by one, explain how the facts relate to each of the preliminary injunction requirements.  Even though this is a hearing before a judge, the question is largely a factual one, so think more in terms of the factual argument you would present to a jury.

Whenever possible, add in relevant precedent.  There are basically two types.  The first gives legal standards.  If a court has defined what “irreparable harm” means, state it.

The second type of precedent is factual.  Look for cases where the party on the opposite side from your should have won, but lost.  Then argue that if the party lost in that case, your opponent must lose in this one.

For example, if you’re the state and there is a case where a party moving for a preliminary injunction said that if the injunction isn’t granted a bomb will blow them up, and the court didn’t think that was irreparable, then there’s no way the harm the tribe is claiming is irreparable.


This is probably the least important part of the memo, it just makes things fit together.  If you’re the tribe, argue that you met all four requirements.  If you’re the state argue that the tribe failed all four requirements, and that they only need to fail one.

State Strategy

The state has two basic themes it wants to run with: burden of proof, and best interests of the child.

The tribe is the moving party, the burden of proof is on them, and if they fail on just one of the preliminary injunction requirements, the whole thing fails.  Play to those strict rules as much as possible.

Also, harp upon how the state is protecting the best interests of the child, while the tribe is fighting for the best interests of the tribe.  The better this argument is, the more likely the judge is to find the tribe failed to meet its burden of proof.

Tribe Strategy

The tribe’s strategy revolves around best interests of the child, and the status quo.

The tribe has to rely on the poor track record the state has in how it treats Indian children.  Use this to undercut the state’s claim that it is acting in the best interests of the child.  Paint them as bumbling government bureaucrats, wrecking lives just to follow a misguided law.

Then, argue the status quo.  Even though you are moving for a preliminary injunction, what you’re really arguing is that everything stay where it is until trial.  The state is the party trying to get its way before the hearing.  This argument is completely bogus legally, it does not at all change the legal burdens on the tribe.  But, it should soften the judge and make him more likely to find you’ve met your burden.

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One Response to “ICWA FML FTW”

  1. Guano Dubango Says:

    What is this? Is this a way for men to get close to law student women? Can I sign up to volunteer?

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