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What Does the ICWA Ruling Mean for Native American Kids?

June 15, 2023

The Supreme Court’s long and complicated ruling in this morning’s Brackeen case comes as a let-down to anyone seeking a brighter future for Native American children. In a 7-2 decision, the Court chose not to resolve vital constitutional challenges to the Indian Child Welfare Act (ICWA), a federal law that strips these children of legal protections that kids of other races enjoy, and imposes race-based restrictions on their foster care and adoption. The ruling, based largely on the technical legal doctrine of “standing,” means questions about ICWA’s constitutionality will be postponed—possibly for another generation—while Native children suffer under ICWA’s unjust and harmful burdens.

As we’ve explained in detail elsewhere, ICWA deprives children deemed “Indian” of the legal guarantees against abuse and neglect that apply to white, black, Asian, or Hispanic children, and in many instances makes it illegal for adults of other races to adopt them. ICWA’s “active efforts” requirement means that “Indian” children must be moreabused than children of other races before child protection officers can intervene on their behalf, and its race-based “placement preferences” effectively bar non-Native adults from offering these kids permanent, loving, and safe adoptive homes. ICWA even bars Native parents themselves from taking steps to protect their kids from harm.

And because ICWA defines “Indian child” based on a child’s eligibility for tribal membership—meaning, based solely on biological ancestry—its unjust rules apply to children who may never actually become tribal members. Cultural, religious, or political connection to a tribe is simply irrelevant—ICWA applies based entirely on the blood in a child’s veins.

“Indian children” aren’t foreigners who can be subjected to some separate set of laws—they’re American citizens. (And they don’t live on reservations; ICWA only applies off reservation.) That means they’re entitled to the same legal rights as all other Americans. Today’s ruling simply delays a reckoning with what Justice Brett Kavanaugh, in his separate opinion, called “significant questions under bedrock equal protection principles.”

It does so based on the theory called “standing,” which says that only plaintiffs who have something at stake in a case are allowed to sue. In the Court’s eyes, neither the people nor the state governments in the Brackeen case have sufficient standing to challenge ICWA’s racially discriminatory provisions, because “state courts apply the [race-based] placement preferences and state agencies carry [them] out…. So an injunction [from a federal court] would not give [the plaintiffs] legally enforceable protection from the allegedly imminent harm.” That seems like a strange proposition, given that the reason state courts impose ICWA’s racially discriminatory rules is primarily because federal law mandates it. Texas, for example, argued against ICWA’s constitutionality in the Supreme Court precisely because it forces Texas to discriminate in ways that would be illegal under state law. And certainly the Brackeen family—seeking to adopt an “Indian child” in state court—have a genuine legal stake in the question of whether the rules state agencies are required to implement are constitutional or not.

The silver lining in this cloud of legal abstraction is that the Court left open the possibility of a future case in which ICWA’s constitutionality might be directly resolved. As the justices noted, most ICWA cases are decided by state, rather than federal courts, and litigants in state ICWA cases remain free to raise the constitutional issues involved here.

In their separate opinions, Justices Kavanaugh, Thomas, and Alito gave a preview of how those arguments might proceed: they involve not only crucial questions about racial discrimination, but also the scope of Congress’s power to legislate with respect to Indian tribes.

That last point is obviously crucial, and it’s bound up with the funny word “plenary.” As I explained in detail my article, The Federalism Problems with the Indian Child Welfare Act, the word “plenary” is ambiguous: sometimes it means “absolute” and sometimes it means “exclusive.” Nobody doubts that Congress has exclusive power over some things—meaning that when it speaks, states can’t interfere—but Congress doesn’t have absolute power over anything whatever. Nevertheless, Indian law precedents are replete with uses of the word “plenary” in ways that suggest that Congress can do anything it likes when it comes to Native Americans —including disregarding constitutional rules against race-based legislation. And the Brackeen case does the same, concluding that Congress can “legislate across a wide range of areas, including criminal law, domestic violence, employment, property, tax, and trade,” even though nothing in the Constitution actually allows this. On the contrary, the entire theory of “plenary” power was created in a case called Kagama, which was decided in 1886, half a century before Native Americans were made citizens of the United States, and at a time when they were considered foreign enemies, conquered during war. As we argued in our brief urging the Court to strike down ICWA, Kagama’s rationale—which was dubious to begin with—simply cannot apply to an era in which Native Americans are U.S. citizens, entitled to the same rights as all other citizens.

But on that point, today’s decision is silent. And of course, it was silent about whether ICWA crosses the line into race-based legislating.

Still, the Court did resolve some issues, particularly the argument that ICWA violates the constitutional prohibition on “commandeering.” Commandeering happens when the federal government forces state officers to implement a federal law—and the Court has made clear that this isn’t allowed. It’s held that while federal laws are supreme—and states can’t interfere with federal law—Congress cannot compel states to implement federal laws.

ICWA clearly does compel states to implement federal mandates in a variety of ways. For example, if state child welfare agencies wish to rescue an abused Native child from a dangerous household, it must engage in “active efforts,” a phrase that essentially means the state is required to return abused children to the families that have abused them, which would not be the case if the child involved were white, black, Asian, Hispanic, etc. That mandate is a form of commandeering.

Nevertheless, the Court held that it’s constitutional, on the theory that the same “active efforts” requirement applies to individuals, too: for example, if a Native American parent wants to terminate the rights of her abusive ex-husband—even if he is not Native—ICWA’s “active efforts” provision effectively prohibits her from doing so. In reality, ICWA was never intended to apply to private parties. But that’s how some state courts have interpreted it. And today’s decision says that because those state rulings say private entities must follow ICWA’s mandates, therefore the mandates treat the state the same as private parties, and don’t violate the Constitution’s ban on commandeering.

This seems like putting form ahead of substance, given that the vast majority of cases involving “active efforts” are ones involving states, rather than private parties, but the Court brushed aside that point, saying that “the record contains no evidence supporting the assertion that States institute the vast majority of involuntary proceedings.” Such an assertion seems to ignore reality—and it ignores the fact that “active efforts” only binds private parties when they’re seeking a state court action—such as the termination of parental rights. In other words, the only times private parties must follow this rule is when they’re forced to do so as the price of getting the state government to do something. That means the “active efforts” requirement isn’t truly evenhanded—it applies as a precondition of official state government action.

More strangely, the Court held that the commandeering rule isn’t violated by ICWA’s “placement preferences,” which require that Native children be placed with Native households (even if they’re of different tribes than the children involved). These preferences force state officials to conduct a “diligent search” for racially acceptable housing for Indian children. Aside from the constitutionally offensive notion of a racially acceptable household, this “diligent search” requirement is expensive and time consuming. Yet the Court held that it’s not commandeering—even though it obviously forces state officials to implement a federal rule. The Court’s reasoning was that this requirement “does not require anyone, much less the States, to search.” Instead, the justices claimed, it only applies to a “tribe or other objecting party” who opposes the adoption of a Native child by a non-Native family. This will come as news to many litigants in ICWA cases.

Although the Court ruled against the plaintiffs on these more abstract parts of the case, it chose to remain silent regarding the elephant in the room: ICWA’s racially discriminatory rules bar state child welfare officers from protecting Native kids from abuse, and block adults of other races from adopting them (even with parental consent, as in the Brackeens’ own case). Those issues, the justices said, would be best resolved by state courts. As Mark Fiddler—perhaps the nation’s foremost ICWA expert—put it, this means ICWA “lives to die another day.”

Indeed, there are many ICWA cases now going on in state courts in which these constitutional issues may arise. The most obvious is the pending case in Texas which also involves the Brackeen family. But there are also lawsuits currently being litigated in California, Oklahoma, Minnesota, and other state courts, in which lawyers who want what’s best for children may challenge ICWA’s obsolete and unconstitutional race-based restrictions. As Frederick Douglass once said, nothing is settled that is not right—and today’s decision does not begin to settle the constitutionality of ICWA.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.



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