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SCOTUS Will Decide Future of Indian Child Welfare Act

By Nicole Ezeh  |  November 29, 2022

Haaland v. Brackeen consolidates four cases challenging multiple provisions of the Indian Child Welfare Act (ICWA) as unconstitutional. Challengers include Texas, Indiana and Louisiana and individuals who would like to adopt Native American children.

The entire Fifth Circuit heard this case in 2019. The Supreme Court granted certiorari in February 2022 and heard the case on Nov. 9. SCOTUS has not yet issued a ruling.

The ICWA was adopted in the 1970s because Congress was concerned about “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” (In re Isaiah W. (2016) 1 Cal. 5th 1, 7.)

Per the ICWA, if a Native American child is to be placed in foster care or parental rights are to be terminated, “active effort” must be made to provide remedial services and rehabilitative programs and an expert witness must testify that “continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”

The ICWA lists preferred adoptive placements in this order: with family members, members of a child’s tribe, and “other Indian families” and preferred foster care placements in this order:  with family members, foster homes of the child’s tribe, or “Indian foster home[s].” The ICWA also contains record-keeping requirements.

The Supreme Court is tasked with deciding five legal issues brought by the parties: whether the ICWA violates the anticommandeering doctrine, whether the placement preference for Native American families violates the equal protection clause, whether the Fifth Circuit had the authority to decide the equal protection issue, whether the ICWA provisions allowing tribes to change the preferred placement order through tribal resolution violates the non-delegation doctrine, and whether Congress has the constitutional authority to regulate Native American adoptions off reservations.

The anticommandeering doctrine “prohibits federal laws commanding the executive or legislative branch of a state government to act or refrain from acting.” Texas and the individual plaintiffs argue that all the ICWA provisions described above violate the anticommandeering doctrine because they require state agencies to take action.

In a long and complicated opinion, the Fifth Circuit disagreed in part; namely a majority of the Fifth Circuit panel held that several challenged ICWA provisions validly preempt state law and so do not commandeer states.

During the SCOTUS hearing, Justices Amy Coney Barrett, Neal Gorsuch, and Ketanji Brown Jackson all seemed unconvinced by the anticommandeering argument. While Barrett did question whether the “active effort” provision could be considered commandeering, Gorsuch noted that the provision applies to both state and private entities tasked with placing children in adoptive or foster homes, and therefore does not coopt state governments. Jackson noted the relative novelty of the anticommandeering precedent and the fact that the doctrine has never been applied to Native American affairs before.

By an equally divided vote the Fifth Circuit concluded that the ICWA’s placement preferences for “other Indian families” for adoption and “Indian foster home[s]” for foster care violates the Fifth Amendment’s Equal Protection Clause.

According to Judge Kyle Duncan, “the preference privileges Indian families of any tribe, regardless of their connection to the child's tribe, over all non-Indian families. ICWA's classification therefore does not rationally further linking children to their tribes.”

The U.S. and the Cherokee Nation disagree: “[L]egislation does not fail the rational-basis standard applicable here ‘merely because the classifications it makes are imperfect.’” Gorsuch and Barrett disagreed with the U.S.’ reasoning, rebutting that the third-preference treats different tribes as interchangeable and is not a political classification but instead an unconstitutional racial preference.

The U.S. and the Cherokee Nation also argue that the Fifth Circuit didn’t have standing to decide the equal protection issue. The U.S. points out that “other Indian families” and “Indian foster home[s]” are third-ranked preferences meaning it is not certain they would come into play if the challengers tried to adopt a Native American child.

Gorsuch was doubtful on the standing of both the individual plaintiffs as well as the plaintiff states, noting that the plaintiffs sued federal officials who did not have power over the state family courts. Justice Clarence Thomas echoed this doubt and asked the states to explain why they had standing to sue on behalf of aggrieved private individuals who could file suit on their own. The other justices asked limited questions regarding standing, which could indicate their willingness to decide this case on the merits rather than procedure.

The individual plaintiffs challenge more broadly on equal protection grounds ICWA’s requirements that states administer a separate child-placement regime for “Indian children” which favor Native Americans for child placement. 

A majority of the Fifth Circuit held that the ICWA complies with Congress’s Article I authority to “regulate Commerce . . . with Indian tribes.” The individual plaintiffs and Texas disagree.

The individual plaintiffs argue the ICWA doesn’t regulate commerce because “children are not commodities or objects of commerce.” They also argue the ICWA doesn’t regulate commerce “with the Indian tribes.” “Rather, the placement preferences govern the relationship between prospective parents (including non-tribal members) and ‘Indian children’ (including non-tribal members).” Several justices did not seem to accept the plaintiffs’ argument. Justices Elise Kagan and Barrett both pushed back, both describing Congress’s authority over Native American affairs as plenary and Kagan going further to define plenary power as “unqualified” power.

The question in a non-delegation challenge is whether a statute has impermissibly “delegated legislative power.” Section 1915(c) of the ICWA allows tribes to establish through tribal resolution a different order of preferred placement than the order described above.

A majority of the Fifth Circuit concluded this authority doesn’t violate the non-delegation doctrine because “Congress may incorporate the laws of another sovereign into federal law.” But, according to Texas, the “ICWA does not incorporate the laws of Indian tribes; it gives them the power to change the law enacted by Congress.” The non-delegation argument was not discussed at length during oral argument.

Nicole Ezeh is a legislative specialist in NCSL's State-Federal Relations Program.

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