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SCOTUS to Decide Constitutionality of Indian Child Welfare Act

By Joseph Fawbush, Esq. | Last updated on

The Supreme Court is set to take up a case regarding the constitutionality of the Indian Child Welfare Act next term. The case, Brackeen v. Haaland, pits several competing interests: state governments' interests in protecting the welfare of children, Native American tribal interests in raising children within their own culture, and the rights of non-Native Americans to adopt a child regardless of race or ethnicity.

The Supreme Court will hear oral arguments in Brackeen next term, so a decision is not expected until spring of 2023. Read the lower courts' decisions and thousands more with a free trial of Westlaw Edge.

The Issue

The Indian Child Welfare Act (ICWA) gives jurisdiction to tribal courts over state family law courts in the case of Native American children. It also gives priority to Native families for adopting a child who is a member of their tribe. Congress passed the law in 1978 in response to Native American concerns that many children living in tribal lands were being removed to non-Native families. According to the National Indian Child Welfare Association, between 25-35% of Native American children were being put up for adoption or in the foster care system when the law was enacted, with 85% of those children being permanently placed in non-Native homes.

The ICWA has remained untouched for several decades. Recently, however, several states and non-Native families challenged the law as unconstitutional. For example, just last year, in Adoptive Couple v. Baby Girl, SCOTUS held in favor of the non-Native adoptive parents. And now, Brackeen.

A Complex Series of Decisions

The Brackeen lawsuit is complex. Three states ꟷ Texas, Indiana, and Louisiana ꟷ along with non-native foster and adoptive parents, sued for various violations including constitutional Equal Protection and the Administrative Procedure Act (APA). Specifically, the plaintiffs argue that it goes against the Equal Protection Clause of the Fourteenth Amendment for the ICWA and Bureau of Indian Affairs to require courts and agencies to apply these federal standards regardless of the child's best interest only when the child is "Indian."

Texas district court held in favor of the plaintiffs on summary judgment, finding that the ICWA violated not only Equal Protection, but also the anti-commandeering doctrine stemming from the Tenth Amendment(the SCOTUS-created doctrine that prohibits the federal government from forcing states to adopt and enforce federal regulations). The The district court further held that the rules promulgated by the Bureau of Indian Affairs were not subject to Chevron deference and violated portions of the APA. Put simply, the district court judge ruled in favor of the states and non-Native families on every issue.

The U.S. government, which is defending the law, appealed. Subsequently, a three-judge panel on the 5th Circuit Court of Appeals reversed, finding the exact opposite of the district court on every issue except standing. One member of the panel dissented in part, arguing that portions of the IWCA "direct state officers or agents to administer federal law" in violation of the anti-commandeering doctrine. However, the panel was unanimous in finding that the ICWA did not violate Equal Protection.

The 5th Circuit then reheard the case en banc (meaning that it was heard before all 15 circuit judges and the Chief Judge). Neither of the principal opinions in the en banc decision reached a majority except for the issue of standing. Instead, the court decided the following piecemeal:

  • At least one of the non-Native families had standing to move the case forward (this was the only unanimous portion of the decision);
  • Congress had authority under the Commerce Clause (which gives it power to regulate commerce "with the Indian Tribes") to provide minimum protections for Indian children under the ICWA;
  • ICWA provisions validly preempt state law, at least to the extent they applied to state courts, instead of state agencies (meaning the ICWA does not violate the anti-commandeering doctrine);
  • The ICWA's “Indian child" classification did not violate Equal Protection;
  • Administrative rules implementing ICWA did not violate the APA and were subject to Chevron deference.

The end result of this muddied en banc decision is that the ICWA was deemed valid, the Bureau of Indian Affairs was able to issue its regulations, and the states contesting the ICWA must follow its provisions. The states appealed again, this time to the U.S. Supreme Court.

Supreme Court Takes Up the Case

In February, the Supreme Court agreed to hear the case. Increasingly, the court has been analyzing (and criticizing) the Chevron line of cases that gives deference to administrative agencies when issuing rules and findings. Additionally, next term SCOTUS will hear two cases about affirmative action in higher education, meaning that race-conscious laws will be under scrutiny. Thus, Bracken v. Haaland could potentially become a vehicle to both limit Chevron deference and make race-conscious legislation much more difficult to pass, should the Justices wish to do so.

Meanwhile, the ICWA still governs adoptions involving Native American children.

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