The last time a case involving the Indian Child Welfare Act reached the U.S. Supreme Court in 2013, Justice Anthony Kennedy lamented the often heart-wrenching quandaries that family court judges face in deciding child-custody disputes. And the since-retired Kennedy suggested that his own court could benefit from the aid of a higher, wiser power in such matters.
“Our domestic-relations judges all by themselves every day have these difficult problems,” Kennedy observed during oral arguments in that case, Adoptive Couple v. Baby Girl. “If we could appoint King Solomon, who was the first domestic-relations judge, as special master, we could do it. But we can’t do it.”
So, the justices will have to muster all their wisdom to consider a major challenge to ICWA, the 1978 federal law that establishes standards for state court proceedings involving Indian children. (Federal law, from the U.S. Constitution to hundreds of statutes and treaties, refers to native and indigenous peoples of the United States as Indian.)
Responding to concerns about the breakup of Indian families and the removal of children by state authorities, Congress provided for exclusive tribal jurisdiction over children residing on Indian reservations, while for other children who ended up in state-court custody proceedings, the law aimed to protect “the best interests of Indian children” with certain procedural requirements as well as a preference, “in the absence of good cause to the contrary,” for the placement of an Indian child with “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”
“Before ICWA, we faced a crisis,” says Tehassi Hill, the chairman of the Oneida Nation, a Wisconsin-based tribe. “State agencies were removing up to one third of our native children from their homes. Even when safe homes with their relatives were available, the majority of these children were placed outside their families and communities. This separation resulted from a long and tragic effort to stamp out our culture and our people, to break the connection our children have with their heritage.”
Now, ICWA faces a broad, multipronged legal attack led by the state of Texas, which along with seven individuals sued the federal government challenging various provisions of ICWA as unconstitutional. The most attention-getting is the attack on the law’s preferences for placing Indian children with family members or other Indians.
“ICWA violates the Constitution’s equal-protection guarantee by categorizing children based on genetics and ancestry and potential adoptive parents based on their race,” Texas Solicitor General Judd E. Stone II argues in a brief.
“The entire purpose of the statute—to treat Indian children, parents, and potential adoptive families differently from non-Indians in order to shore up tribes’ numbers—is unconstitutional, as is the means the federal government has employed to achieve it,” Stone says in the brief.
The challengers largely lost in a federal appeals court, but the fact that the Supreme Court granted review in Haaland v. Brackeen, to be argued on Nov. 9, has Indian tribes nervous.
“There are some very real, major questions the court is taking that can fundamentally change our understanding of federal Indian law and how it is practiced,” says Kathryn E. Fort, the director of the Indian Law Clinic at Michigan State University.
Fort is one of the lawyers representing the Oneida Nation, as well as the Cherokee Nation and the Morongo Band of Mission Indians, who are among other tribes that have intervened to defend ICWA. The others are the Navajo Nation and the Quinalt Indian Nation.
“ICWA is based on a simple idea: When Indian children can stay with their families and communities, Tribes and children alike are better off,” the tribes say in a brief. “And because ICWA implements that simple idea, it has become the ‘gold standard’ for child welfare.”
Timothy Sandefur, the vice president for legal affairs of the Goldwater Institute, a Phoenix-based legal organization that has filed an amicus brief in support of Texas and the other challengers of ICWA, says the “gold standard” idea originated in a brief in the 2013 Adoptive Couple case arguing that states should respect the bonds between “a child and her fit birth parents.”
“The question is what do you do when the birth parent is not fit,” says Sandefur. “ICWA re- stricts states’ ability to protect Indian children from unfit parents. And it does so in a way that overrides the ‘best interests of the child’ rule—which is the actual ‘gold standard.’”
Besides their equal-protection claim, Texas and the other plaintiffs challenged various provisions of ICWA under the Indian Commerce Clause in Article I of the Constitution and the so-called anticommandeering doctrine, which restricts when the federal goverment may command the states to carry out certain functions. A federal district court issued summary judgement largely in favor of the plaintiffs.
But the 5th Circuit U.S. Court of Appeals, ruled in a fractured en banc opinion that Congress had authority under Article I to enact ICWA and that the statute’s differential treatment of children did not violate the equal-protection clause. The court said the statute distinguished between children base on tribal membership, which the majority said was a political, not racial, classification.
The decision led to four separate petitions or cross-petitions for certiorari from both sides of the case, and the Supreme Court granted all four.
In the 2013 Adoptive Couple decision, the Supreme Court ruled against an Indian father seeking to wrest custody of his biological daughter from an adoptive couple based on provisions of ICWA. Justice Samuel Alito, in his opinion for the court, noted that ICWA was being invoked because the child involved “is classified as an Indian because she is 1.2% (3/256) Cherokee.”
His observation seemed to give further impetus to equal-protection critiques—and eventual challenges— of the federal Indian statute.
“ICWA classifies children based on their blood ties to a recognized Indian tribe,” Texas says in its merits brief. “Although some Indian tribes once admitted certain members for reasons unrelated to their blood connection to the tribe, today a person generally must possess a threshold amount of Indian or tribal ‘blood,’ expressed as one-half, one-quarter, or some other fractional amount to establish Indian ancestry.”
In that context, the state argues, “tribal membership, ancestry, and descent are simply proxies for race.”
In a separate brief, the individual challengers to ICWA, which include non-Indian parents who have adopted or sought to adopt children of Indian ancestry, argues that the statute “draws two classifications that are race-based and subject to strict scrutiny.”
The first is its broad definition of “Indian child,” which sweeps in children who are not even tribal members based solely on their ancestry, the individuals argue. The second is ICWA’s “hierarchy of placement preferences, which relegates non-Indian adoptive families to fourth-tier status, behind any other Indian family from any tribe across the country.”
Sandefur, of the Goldwater Institute, says that while most federal Indian laws are triggered by tribal status, ICWA is unique because it is based on the child’s ancestry.
“Under ICWA, a child is deemed Indian solely based on the blood in her veins,” he says. “No amount to political affiliation with a tribal entity is sufficient to make you an Indian if you lack the biological criteria that ICWA requires.”
The federal government (representing U.S. Secretary of the Interior Deb Haaland) and the intervening tribes rely heavily on a 1974 decision by the high court, Morton v. Mancari, which held among other things that the Constitution authorizes special legislation for the “problem of Indians” and that when Congress legislates based on affiliation with “federally recognized tribes,” such classifications are “political rather than racial.”
A later Supreme Court decision observed that “Mancari ‘foreclosed’ any contention that the Indian classification was ‘invidious’ or ‘racial’ in character’,” U.S. Solicitor General Elizabeth B. Prelogar says in a brief.
“The precedent of the Supreme Court is that Indian tribes are political groups of people,” says Chrissi Ross Nimmo, the deputy attorney general of the Cherokee Nation, based in Oklahoma. “They’re not racial groups of people. Specifically, when it comes to the Indian Child Welfare Act, tribes determine citizenship.
“If the plaintiffs are successful here in convincing the court that whether or not a child is subject to ICWA turns on their race and not their political status as a member or eligible member for a tribe, that will allow some of those same groups to challenge other areas of federal Indian law,” Nimmo adds
The federal government and the tribes have numerous allies, including the American Bar Association, which filed an amicus stressing child welfare and Indian law. It urges the court to rule not based on some of the individual stories stressed by the challengers’ side but based on established law and Congress’s legislative judgment.
When the court takes up the complicated case next week, several tribal leaders plan to be there.
“We will not go back to a time when our children were stolen from our communities without cause,” says Charles Martin, the chairman of the Morongo Band of Mission Indians. “ICWA keeps children connected to their families, their culture, their tribal community, and their heritage.”
ABAJournal.com: “Supreme Court should uphold Indian Child Welfare Act, ABA says in amicus brief”