By Amy Howe
November 8, 2022
at 2:56 p.m.
Home Secretary Deb Haaland, the First Native American Cabinet Secretary and named defendant in a challenge to India’s Child Welfare Act, is sworn in by Vice President Kamala Harris on March 18, 2021. ( White House photo by Lawrence Jackson)
In 2012, the late Judge Antonin Scalia appealed a dispute arising from the adoption of Native American twins to a Mississippi state court. the most difficult case he has encountered in his day on the Supreme Court. In this case, the Supreme Court ruled that under the Indian Child Welfare Act, a 1978 federal law that aims to keep Native American children in Native American families, only a tribal court – rather than the state court – had the power to hear the proceedings of adoption. On Wednesday, the Supreme Court will hear oral arguments in a group of cases challenging the constitutionality of ICWA itself.
Native American tribes call the law “one of the most important pieces of Indian federal legislation ever enacted” and warn that a ruling in favor of the challengers would “profoundly harm Indian children and Indian tribes”. But Texas, one of the challengers, argues that ICWA “has failed to achieve its stated goals of improving stability and security among Indian tribes”, so Native American children covered by the ICWA “remain at greater risk of abuse and neglect than other children.”
The ICWA was enacted in response to a long and tragic history of separation of Native American children from their families. This initially happened when the federal government, seeking to promote assimilation, sent Native American children back to boarding schools across the country. Separations continued into the mid-20th century through state court proceedings that determined, without regard to Native American culture, that the children had been neglected or abandoned, and then placed the children with families that did not were not Native American.
To address this history, the ICWA sets minimum standards for the removal of Native American children from their families and establishes a preference that Native American children who are removed from their families be placed with extended family members or in native foster homes. Under ICWA, tribal courts have exclusive jurisdiction over child custody proceedings involving indigenous children who live or have permanent residence on tribal lands. However, in child custody proceedings in state court for the millions of Native American children who do not live on tribal lands, the ICWA Minimum Standards apply.
The litigation in the Supreme Court on Wednesday – Haaland v. Brackeen and three consolidated cases – was filed in Texas federal court by Texas and seven individuals: three non-Native American couples who had attempted to foster or adopt children of Native American ancestry, as well as the birth mother of a Native American child who was eventually adopted by one of the couples, Chad and Jennifer Brackeen. Four tribes later joined the case to defend the law. The federal district court ruled for the plaintiffs, finding the ICWA unconstitutional, but a three-judge panel of the United States Court of Appeals for the 5th Circuit overturned. A decision by the entire 5th Circuit that partly upheld and partly reversed the panel’s decision prompted four different Supreme Court review petitions, from the Biden administration in Texas, individual challengers and tribes. The judges agreed in February to take up the case.
There are four main issues at the heart of the dispute. The first is whether ICWA goes beyond the powers that the Constitution gives Congress in Article I, which authorizes Congress to “to regulate commerce” “with the Indian tribes”. The challengers argue that states, rather than Congress, have long had the power to regulate adoption and custody procedures. Nothing in Article I authorizes Congress to interfere with these proceedings, they say. And although Congress has allegedly relied on its powers to regulate trade with the tribes, they point out, “children and families seeking to give them homes are not articles or instruments of commerce.”
The Biden administration and the tribes counter that Native American children have “always been a federal (and tribal) sphere.” They insist that the Constitution gives Congress the power to broadly regulate Native American affairs, as part of the federal government’s longstanding duty to protect Native Americans. In particular, they say, the power of Congress to regulate trade with the tribes was never limited to “the buying, selling, and transporting of goods”; rather, the Constitution gives Congress the power to regulate all interactions between Native Americans and non-Native Americans.
The second issue in the case is whether the ICWA violates the Constitution’s Equal Protection Guarantee, which generally prohibits the government from discriminating on the basis of race, sex or ethnicity. The Biden administration and the tribes argue that the distinctions drawn by the ICWA are purely political, that is, based on tribal membership or close connection to a tribe. As a result, they note, they are subject to a less stringent constitutional test, which requires only a rational relationship between the law and the duty of Congress to Native Americans. This relationship is clearly present, they continue, because ICWA is creating a program that aims to “prevent the unjustified separation of Indian children from their families and communities”.
Texas and the individual plaintiffs insist that the ICWA draws distinctions, both for Native American children and prospective adoptive parents, based on race rather than politics, as evidenced by the fact that the ICWA “applies even where a child is not a member of an Indian tribe and does not live on a reservation. Indeed, they assert, “[t]The purpose of the law” is “to treat Indian children, parents and prospective adoptive families differently from non-Indians in order to strengthen the number of tribes”. Race-based classifications, they add, are subject to the strictest constitutional test, known as strict review – a standard the ICWA cannot pass.
The third issue in the case concerns allegations that the ICWA violates the 10th amendmentThe “anti-requisition doctrine”, which prohibits the federal government from requiring states and state officials to adopt or enforce federal law. The challengers point out that Congress could not directly require state legislatures to adopt federal investment preferences, nor should it be able to do so indirectly by enacting the ICWA and then requiring state courts to enforce it.
The Biden administration and the tribes reiterate that the treatment of Native American children has long been within the jurisdiction of the tribes and the federal government. The ICWA, they argue, merely provides rules for state courts to apply in cases involving Native American children — which is not a requisition, the tribes say, but rather a preemption, the idea that the Federal laws take precedence over state or local laws.
Texas is also challenging an ICWA provision that allows tribes to adopt, for use in state courts, their own order of preference for the placement of Native American children belonging to a particular tribe. This provision, according to Texas, unconstitutionally delegates legislative authority to tribes and “allows tribes … to determine with whom state courts should attempt to place Indian children and under what circumstances.”
The Biden administration and the tribes reject any effort to call the delegation provision unconstitutional. Instead, they counter, the provision “prospectively incorporates the tribes’ own preferences into federal law.”
This article has been originally published at Howe on the Court.