On November 9, 2022, the Supreme Court of the United States (SCOTUS) heard oral arguments in Brackeen v. Haaland, No. 21-380, three consolidated cases addressing the Indian Child Welfare Act (ICWA). This article first provides a brief background on the ICWA. It then discusses the three arguments in the case itself, their consequences, and potential outcomes given the Justices’ positions at oral argument. It ends with some suggestions for further listening.
I. The ICWA
Congress passed the ICWA in 1978 to reverse the trend of separation of Native American families. State agencies (think child protective services) were removing Native children at high rates, placing them in the so-called Indian boarding schools or adopting them out to non-Native families. In other words, before the ICWA, state and local governments were engaged in the genocidal practice of cultural erasure through family separation. And it is worth noting that this trend continues.
Native children are still removed from their families at much higher rates than white children.
Congress, recognizing this history, passed the ICWA to prevent further abuse. Without getting too into the weeds, the ICWA sets higher procedural and substantive standards when “Indian children” (a legal term of art with a specific definition) enter the child welfare system. The ICWA also directs states to prefer placing such children with family and tribes above non-Native placements, if children cannot remain safely at home.
II. The Challenges and Consequences
The case considers three challenges to the ICWA:
1. Did Congress lack the authority to pass the ICWA?
2. Does the ICWA impermissibly discriminate on the basis of race when it prefers tribal placement over placement with non-Native families?
3. Did Congress impermissibly commandeer state functions when directing state and local agencies to take certain substantive actions in child welfare cases?
The consequences of a ruling in favor of the challengers on any one of those grounds would be significant.
If the Court determines that Congress lacked the authority to pass the ICWA, the decision would represent a significant narrowing of Congress’s power to regulate Indian affairs under the Constitution. Though it has long been held that Congress’s power over Indian affairs is a “plenary power,” a decision in the challengers’ favor would call into question dozens of other laws and regulations that the federal government exercises with and over Indian tribes. It would also represent a profoundly troubling turn against Native rights. The history of federal regulation of Indian affairs is certainly not clothed in glory. To say that the federal government had the plenary power to pass laws and sign treaties that were abusive of tribes, and then say that Congress could not use that power to do something to protect Native families, would be (to understate the case) troubling.
If the Court determines that the ICWA engages in race discrimination, the theories undergirding much of American Indian law could be undone. Tribes have long been held to be political groups, not racial groups. Questions about the regulations between states, the federal government, and the tribes have been about the political affiliations between and among those entities. If the Court changes that lens and, instead, holds that such classifications are racial and thus subject to “strict scrutiny” analysis, then much of Indian law as we know it will change. As but one example, tribes are allowed to operate casinos on their land even when states otherwise ban gambling. That differential treatment is, currently, based not on race but on politics and sovereignty; tribes have the authority to regulate gaming on their own land. But if the line between Native and non-Native is racial rather than political, such laws are subject to challenge based on race discrimination.[1]
Finally, if the Court determines that the ICWA unconstitutionally commandeers state officials, then many of the substantive standards that erect barriers to separating Indian families will no longer be enforceable. But in this case, state legislatures could fill the gaps with their own state-based ICWAs. Instead of a uniform national standard, the rights of Indian families will be a patchwork of laws and regulations, and tribes may have more or fewer rights depending upon which state can regulate their land.
III. The Oral Argument
It is not entirely clear where all of the Justices stand after oral argument. It appears that Justices Gorsuch, Jackson, Sotomayor, and Kagan will vote against all or most of the challenges. Chief Justice Roberts, as well as Justices Kavanaugh and Barrett, were less clear during argument about their positions. And Justices Thomas and Alito appear likely to vote in favor of all or most of the challengers’ arguments.
One of the complications, here, is the wide range of options available to the Court. For example, even ruling for the challengers, the Court could rule narrowly and carve out only small portions of the ICWA as unconstitutional, preserving the rest of the law. Or it could use this case as a vehicle to enact major changes not just to child welfare law but to all of Indian law as we currently know it.
But whatever it does, this case will have profound consequences not just for Native families but for tribes generally and their political relationships with the state and federal governments.
IV. Other Resources
To learn more about this case, I recommend the following:
· Season Two of This Land: https://crooked.com/podcast-series/this-land/
· The Uncertain Future of the Indian Child Welfare Act, Strict Scrutiny Podcast: https://crooked.com/podcast/the-uncertain-future-of-the-indian-child-welfare-act/
[1] Indeed, it should come as no surprise, then, that one of the lawyers representing the challengers in this case also represents a casino developer looking to invalidate Indian gaming laws.
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