Last week the Supreme Court of the United States issued one of its most important decisions of the year, Haaland v. Brackeen, in which the court affirmed the constitutionality of the Indian Child Welfare Act (ICWA), a federal law that protects the well-being and best interests of Indian children and families. This was the U.S. Supreme Court's first ruling on ICWA since Adoptive Couple v. Baby Girl, the 2013 decision in which a 5-4 court ruled that a Cherokee father couldn't rely on ICWA to block his biological child's adoption. Since that time, the structure of the Supreme Court has changed, and eyes were on Justice Neil Gorsuch. In my view, he did not disappoint.
But first some history. Congress enacted ICWA in 1978 to re-establish Tribal authority over the adoption of American Indian and Alaska Native (AI/AN) children. Its goal was to strengthen and preserve Native American family structure and culture. Legislative history showed that between 25% and 35% of all Native children were being removed from their homes by state child welfare and private adoption agencies, and that of those, 85% were placed with non-Native families, even when fit and willing relatives were available. ICWA was intended to be a safeguard that requires placement cases involving Native American children to be heard in tribal courts, and when possible, permits a child's tribe to be involved in state court proceedings.
It also requires testimony from expert witnesses who are familiar with Native American culture before a child can be removed from his or her home. If a child is removed, either for foster care or adoption, the law requires that Native American children be placed with extended family members, other tribal members, or other Native American families prior to placement in non-Indian homes. In short, ICWA is considered to be a procedural safeguard to "protect the best interests of Indian children and to promote the stability and security of Indian Tribes and families." 25 U.S.C. § 1902. ICWA has helped tens of thousands of Indian children and families stay together despite their involvement in state child welfare systems.
The Bracken case, which centered on a child whose biological parents are Navajo and Cherokee but were placed in a foster home with a white couple in Texas, became significant when Texas, Indiana, Louisiana and individual plaintiffs sued the federal government in the U.S. District Court for the Northern District of Texas, arguing that ICWA and its implanting regulations are unconstitutional because they violate the equal protection and substantive due processes provisions of the Fifth Amendment and violate the anti-commandeering doctrine of the Tenth Amendment. The plaintiffs also argued that ICWA and the implementing regulations violate the nondelegation doctrine and the Administrative Procedures Act. The state joined the couple in mounting a broader attack on ICWA.
The District Court held that ICWA violates the Constitution's guarantee of equal protection because it applies to all children eligible for membership in a Tribe, not just enrolled tribal members, and therefore operates as a race-based statute. The District Court also held that ICWA violates the Tenth Amendment's prohibition on the federal government issuing direct orders to states and unconstitutionally delegates Congress's power by giving Tribes the authority to change adoption placement preferences and make states abide by them.
The case was appealed by the federal government and four intervening tribal nations to the Fifth Circuit Court of Appeals. Then, in January 2019, 325 tribal nations, 21 states, 31 child welfare organizations, as well as numerous Tribal organizations, members of Congress and others filed briefs in support of ICWA. A three-judge panel reversed the district court's decision, affirming the constitutionality of ICWA.
Then in a rare move, the Fifth Circuit decided to hold an en banc review of the three-judge panel's decision. Briefs by nearly 500 federally recognized American Indian and Alaska Native Tribes and nearly 60 Native organizations defending the constitutionality of ICWA were filed, and the en banc panel released a fractured, very lengthy decision, which generally upheld the authority of Congress to enact ICWA. But as a result of its divided ruling, the court also upheld the lower court's decision that certain provisions concerning the placement preferences of Native children for Indian homes as well as certain ICWA processes violated the Constitution. The court also ruled that the corresponding provisions of the law's implementing regulations violated the APA. Finally, the en banc court held that ICWA's definition of "Indian child" did not operate on the basis of race.
The recognition that the AI/AN classification is a political classification, (which goes back to the 19th Century) not racial, is a critical underpinning of not just ICWA, but arguably many laws that relate to housing, healthcare, education and employment. AI/ANs are classified by this citizenship, not by their race, and thus formal acknowledgement of the importance of tribal citizenship was critical. If overturned, the repeal of ICWA would have undercut the heart of tribal sovereignty and the federal government's trust responsibility to Native communities.
In September 2021, the U.S. Department of Justice, as well as intervening tribal nations, and others successfully sought review of the Fifth Circuit's en banc decision. Once again, nearly 500 Tribal Nations, more than 60 Native organizations, 23 states and DC, more than 80 congresspeople, nearly 30 child welfare and adoption organizations and many others signed on to more than 20 briefs submitted to the court in favor of upholding ICWA. Oral argument for Brackeen focused heavily on the scope of Congress's constitutional authority to legislate on behalf of Native Americans, the equal protection limitations on that power and whether the requirements imposed on states by ICWA — particularly the "active efforts" requirement — violates the anti-commandeering doctrine.
Those challenging ICWA claimed that it deprives Indian children and non-Indian prospective parents of the "best interest of the child" standard in child welfare proceedings in violation of the Equal Protection Clause. The parties defending ICWA argued on behalf of the intervening Tribes that Congress has broad power to legislate in Tribal affairs, and this power is limited only by other constitutional provisions or by the test set by Supreme Court precedent in Morton v. Mancari, 417 U.S. 535 (1974), which requires congressional action to be rationally related to the fulfillment of Congress' unique obligations to Indians.
Last week, in a 7-2 opinion, the United States Supreme Court dismissed the contention that ICWA goes beyond the power that the Constitution gives Congress in Article I, which authorizes Congress to "regulate commerce" "with the Indian Tribes." Recognizing that Congress's power to enact laws with respect to Native Americans is broad and acknowledging that while family law has traditionally been the domain of the states, Congress can supersede that law, just as it did in ICWA, the court gave Native communities a win. The court also rejected the various anti-commandeering arguments.
The court did not, however, rule on the merits of two additional claims — an equal protection challenge to ICWA's placement preferences and a challenge to ICWA's provision allowing tribes to alter the placement preferences because the plaintiffs did not have standing to raise them. "The issues are complicated," Justice Amy Coney Barrett wrote in the majority opinion. "But the bottom line is that we reject all of petitioners' challenges to the statute, some on the merits and others for lack of standing." In a concurring opinion, Justice Kavanaugh emphasized that "serious" racial discrimination claims made in the case remained undecided but might properly be brought in a future lawsuit by a "prospective foster or adoptive parent or child in a case arising out of a state-court foster care or adoption proceeding."
Justice Gorsuch, the court's strongest champion of Native American sovereignty, in a separate concurring opinion, joined in part by justices Sotomayor and Jackson, traced the history that led to ICWA's enactment, highlighting the federal government's attempts to destroy tribal identity and force assimilation through its boarding school initiative for Native American children and the promotion of adoption of Native American children by non-Native families. He recognized that ICWA was put in place in the wake of disastrous effects of Indian boarding schools, which operated from 1819 through 1968. Native children had been taken from their parents and communities with the intention of destroying language and cultural ties. When boarding schools closed, the problem continued as disruption of Native families persisted with a program operated by the Bureau of Indian Affairs in the 1950s and 1960s called the Indian Adoption Program, which encouraged non-Native couples to adopt Native children. Justice Gorsuch praised the court's decision as "further steps in the right direction," and expressed hope that the court would "follow the implications of today's decision where they lead and return us to the original bargain struck in the Constitution — and, with it, the respect for Indian sovereignty it entails."
I no longer have a role in deciding these legal issues; nor do I still have a role in crafting best child protection policies for Connecticut. Of course, I don't let that stop me from having an opinion. Native tribes have long called ICWA the "gold standard" in adoption, requiring state courts to give first preference to a Native child's immediate family, then another member of the child's tribe, then a member of an unrelated tribe, before consideration of parents who are non-native. As attorneys at ICWA Law Centers around the country have said, ICWA compels the court to look at family connections — which matter in all cases, not just Indian child welfare cases.
The argument in support is that if there is a family member who can provide a safe and loving home, and those connections and opportunities for that child to know who they are and where they came from, that is something that at a very minimum needs to be considered in a very intentional and purposeful way. Furthermore, if that placement will allow the child to be safely with their family or community, that connection, that bond, needs to be recognized as something that is important to protect and actively pursue. ICWA does this by upholding family integrity and stability and by keeping Indian children connected to their community and culture.
Copyright 2023. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune, reprinted by permission.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
