In a case with potentially far-reaching consequences for tribal sovereignty, a divided Supreme Court debated the constitutionality of a 1978 law designed to prevent the separation of Native families and communities, the Indian Child Welfare Act, or ICWA.
ICWA, the result of extensive efforts by Native activists to stop the separation of Native families by the U.S. government, faces a challenge in the closely-watched Brackeen v. Haaland case, in which the state of Texas and three white couples who sought to adopt Indian children seek to overturn the law.
Seven states, including Oregon, have state legislation strengthening ICWA, which legal experts say is the best protection against some challenges to the law.
The fate of ICWA is significant not only regarding the adoption of Indian children, but depending on the specifics of the Brackeen ruling, the decision could upend the fundamental principles of federal Indian law and diminish tribal sovereignty.
A total of 497 federally recognized Native nations, including all nine federally recognized tribes in Oregon, 23 states, 87 members of Congress, and dozens of child welfare advocacy groups filed amicus briefs imploring the Supreme Court to leave ICWA in place.
Why is ICWA necessary?
Since the beginning of European colonization, white settlers, and later the U.S. government, targeted the Indigenous children of Turtle Island in genocidal efforts to destroy Native nations.
These multi-pronged efforts include so-called “residential boarding schools,” forced sterilization, high rates of removals of Native children from their families, outright massacres and bounties on the lives of Native peoples.
In the 19th and 20th centuries, a federal policy of forcibly removing Native children from their families and placing them in so-called “residential boarding schools” existed. School officials stripped Native children of their clothing, names, languages and culture in what is now widely recognized as cultural genocide.
Studies conducted by the Association of American Indian Affairs in 1969 and 1974 showed government agencies removed between 25% and 35% of Native children from their families during the 1950s and 1960s — a period known as the Sixties Scoop.
Approximately 85% of the roughly one-third of Native children government agencies removed from their families were subsequently fostered and adopted by non-Indian families in both government and private adoptions, even when “fit and willing” relatives were available.
Native activists fought hard for ICWA, a law designed to defend against historical and ongoing genocidal efforts by the U.S. government to break up and eliminate Native nations, families and communities to enable land and resource extraction.
Native activists and advocates, including from Oregon, testified before Congress about the devastating nature of United States adoption policies in 1977, influencing Congress to act.
Congress passed ICWA as a partial fix to hundreds of years of efforts to sever ties between Native children and their communities and forcibly assimilate them into white society.
Today, the trauma Native adoptees removed from their families and nations experience is well documented. There are organizations designed around helping Indigenous adoptees reunite with their culture and communities, like the First Nations Repatriation Institute.
Despite the presence of ICWA, agencies under the Department of Human Services still remove Native children from their families at disproportionate rates and place them in non-Native homes. Native advocates say that’s evidence the protections afforded to Indian children through ICWA are still necessary and already lack uniform application.
ICWA, which contains a variety of provisions states must adhere to in child welfare and adoption proceedings for Indian children, lacks both oversight and enforcement. It wasn’t until 2016 that, for the first time, the Bureau of Indian Affairs issued legally-binding amendments to ICWA to improve state compliance with the law.
Elements of ICWA
The law affords special protections and considerations for any child who is a citizen or eligible to be a citizen of a federally recognized tribe.
Under ICWA, the state must comply with certain placement provisions for an Indian child. ICWA requires the state involved in a child custody proceeding involving an Indian child to notify the appropriate tribe of the proceedings and allow them to intervene. Even if a tribe does not intervene, ICWA still applies.
The state must make active efforts to place an Indian child with any fit, willing member of the Indian child’s family, other Indian families in the child’s tribe, and other tribes interested before considering placement in a non-Indian home. There are also requirements surrounding placing Indian foster children in foster homes of the tribe’s choice.
Further, caseworkers must provide active efforts to reunite the family, identify an ICWA-compliant placement, notify the child’s tribe and parents about the custody proceedings and actively include the tribe and the child’s parents in the court proceedings.
Many child welfare advocates consider the protections afforded to children under ICWA the “gold standard” in child welfare despite lacking oversight, which some tribal advocates have partially remedied through the creation of state-specific ICWA legislation, like in Oregon.
Creating ORICWA
In 2020, tribal attorneys helped design a state-specific version of the ICWA, known as ORICWA, to improve compliance with ICWA, clarify the responsibilities of state agencies and tailor the legislation specifically for the nine tribes. It passed in Oregon later that year.
The legislation, which the Oregon Legislature expanded in 2021 to include private agencies, came after some tribal attorneys were concerned with how the state and private agencies complied with ICWA.
Brent Leonhard, attorney and former ICWA officer for the Confederated Tribes of the Umatilla, was instrumental in creating ORICWA.
Leonhard said before ORICWA’s implementation in 2020, the state of Oregon regularly failed to comply with ICWA obligations.
One of ICWA’s requirements is the state sends a certified letter of notice to an ICWA-designated agent regarding the presence of a child custody case.
“We would often get notices sent to the wrong place,” Leonhard said. “Sometimes they fall through the cracks. Sometimes they get to me. When the notices did get to me, often they didn't have the information we needed to make a determination whether a child is a member or eligible for membership.”
Leonhard would then reach out for the additional information needed to make a determination on membership eligibility.
“Very often, we never got a response back from them,” Leonhard said. “At that level, they failed very, very frequently. And that's one of the most important stages in an ICWA case, is notifying the tribe and finding out if the child is eligible.”
Leonhard said these concerns drove him to approach the director of the Oregon Department of Human Services about forming an ICWA compliance group within the child welfare unit of the Oregon DHS.
Leonhard headed a subcommittee within the compliance group responsible for creating state-specific ICWA legislation.
Working with other tribal attorneys for over a year, Leonhard and the subcommittee presented the legislation to Oregon State Rep. Tawna Sanchez, D-43, for consideration. The efforts were successful after a lengthy development, integration and implementation process, ultimately culminating in House Bill 4214.
Leonhard said the issue of failing to notify tribes properly was a focus in the development of ORICWA, which he says did a great deal to fix that particular problem, as the legislation is now “very clear” on the state’s obligations to notify.
Overall, Leonhard characterizes ORICWA as a success, saying state agencies took the concerns of tribal advocates very seriously and implemented real changes to address them.
“They did a lot of internal management to ensure compliance and some restructuring, and a lot of education for child welfare workers, and ensuring there are people who are ICWA experts in various regions,” Leonhard said. “So a lot of the bulk of the compliance I really think we see comes from those efforts, in addition to the law, but actually implementing changes on the ground is what matters, and what works, and they did a phenomenal job of that.”
Despite a nearly 40-year history of helping keep Native families together, three non-Indian couples in Brackeen seek to strike the law down.
Meet the Plaintiffs
Despite ICWA, two couples in Brackeen v. Haaland already succeeded in legal battles to adopt Indian children — the Brackeen family and the Liberetti family. Despite the Brackeens’ successful adoption, the couple seeks to overturn ICWA entirely, arguing it discriminates against them based on their race.
Superpowered law firm Gibson, Dunn & Crutcher — whose past clients include Chevron, Shell, Amazon and Walmart — is representing the Brackeens pro-bono. The firm previously sought to undermine tribal sovereignty in gambling and resource extraction cases. This year in Washington, the firm is arguing laws governing gambling in Washington discriminate against prospective non-Indian casino owners.
“(There’s) just this lack of knowledge, where you have the court making very broad prescriptions for Indian Country with very little knowledge of how Indian Country works.”
– Kathryn Fort, professor and director of the Indian Law Clinic at Michigan State University
Rulings in Brackeen from lower courts, most recently the Fifth Circuit Court of Appeals, have been mixed. While the Fifth Circuit declined to strike down the law, the ruling was highly-fractured and did not include a majority opinion.
The Brackeens took their case to the Supreme Court.
In granting a review of the Brackeen case, the Supreme Court consolidated several similar cases under Brackeen and took up all questions to ICWA from those cases, which are far-ranging. ICWA is enduring a facial challenge, meaning plaintiffs argue ICWA is completely void and unconstitutional in any application rather than arguing only the specific facts of their cases.
At the core of the plaintiffs' arguments is the notion that Indian status is solely race-based rather than political, an interpretation of Indian status that ignores precedent.
The legal meaning of Indian
ICWA applies solely to citizens of federally recognized tribes — not to all people of Native American descent.
The Supreme Court held Indian status is a political designation, not a race, in the 1974 Morton v. Mancari case.
In the context of federal Indian law, in this case ICWA, the label “Indian” or “Indian child” is a legal distinction, meaning that person is a citizen, or is eligible to be a citizen, of a federally recognized Indian nation, effectively making that person a dual-national. This status affords a person protection under ICWA and makes them eligible for other federal programs such as Indian Health Services.
The U.S. government has codified in the U.S. Constitution, Supreme Court rulings and federal laws that tribes are regarded as sovereign nations.
Wide-ranging arguments
The plaintiffs in Brackeen presented wide-ranging arguments, primarily challenging ICWA based on questions related to commandeering, Article 1 of the U.S. Constitution and equal protection.
The anti-commandeering doctrine is a part of the 10th Amendment to the U.S. Constitution and essentially dictates the federal government cannot prohibit or require an action by a state government unless it is specified in the Constitution.
Yale Law and Policy Review calls the commandeering challenge to ICWA “a novel threat to the Indian Child Welfare Act and tribal sovereignty” in a recent article, saying the challenges contradict settled Supreme Court doctrine.
“The anti-commandeering challenge to ICWA threatens to upend much of federal Indian law and to disrupt the delicate balance of power among states, tribes, and the federal government,” according to the article.
The plaintiffs in Brackeen are also arguing the law violates the equal protection clause of the 10th Amendment by discriminating against non-Indian families based on race, despite long-established precedent that Indian status is a political classification.
Which arguments the Supreme Court accepts, if any, could impact Indian children, tribal sovereignty and a host of laws governing relationships with Native nations.
The University of California, Los Angeles Native Nations Law and Policy Institute held a debrief after oral arguments in Brackeen featuring legal experts on Indian Country.
Kathryn Fort, professor and director of the Indian Law Clinic at Michigan State University, spoke on the panel about a shared frustration for Indian law experts watching oral arguments.
“(There’s) just this lack of knowledge, where you have the court making very broad prescriptions for Indian Country with very little knowledge of how Indian Country works,” Fort said.
During oral arguments for both Brackeen and Castro-Huerta, Gorsuch expressed clear skepticism of his fellow conservative justices' interpretations of federal Indian law and their willingness to undercut it.
At the beginning of oral arguments in Brackeen, Gorsuch bluntly questioned whether the plaintiff's case belonged in the Supreme Court at all.
“Counsel, I'm struggling to understand your argument,” Gorsuch said to the plaintiff’s attorney. “For the first half of it, I heard policy complaints. It took a while for me to even hear the words ‘equal protection’ or ‘Article 1.’ ... The policy arguments might be better addressed across the street (in Congress).”
Several conservative justices proposed hypothetical situations during arguments which Indian law experts say are not applicable in the real world, particularly concerning a requirement under ICWA to consider families from other tribes before considering a non-Indian family.
In discussing equal protection, Justice Samuel Alito proposed a hypothetical question as to why a tribe in one state (Maine) would have an interest in an Indian child from another tribe in another state (Arizona) and how that helps preserve tribal sovereignty.
Leonhard, along with attorneys for the U.S. Department of Justice, said the situation proposed by Alito has never come up in practice, and the explanation is relatively straightforward.
“Usually, when that might come up, tribes are pretty closely related,” Leonhard said. “So you know, somebody living on the Umatilla Indian reservation may be a tribal member, they may have their own family members who are members of other tribes; husband, kids, whatever. And in that case, somebody who is Indian from another tribe makes perfect sense.
“It still doesn't seem to be an equal protection issue there because it's politically based — they're members of the community, they're part of the tribal culture, they just happen to be a member of another tribe. They may even reside on the Umatilla Indian Reservation.”
However, if the Supreme Court strikes down ICWA based on the logic that it violates Article 1 of the Constitution or the Equal Protection Clause of the 10th Amendment, the implications of such a ruling would be dire.
Such a ruling would imply Native nations are not sovereign and that tribal citizenship is instead merely a racial classification — potentially jeopardizing Native nations' very right to exist as sovereign governments. Such a ruling could imperil tribes’ ability to conduct business as sovereign nations and threaten a host of existing federal programs and funding available to Native nations and their citizens.
Native advocates fear such a ruling could impact all laws governing Indian Country and any programs or services reserved for federally-recognized tribes, and the current Supreme Court proved itself willing to undercut tribal sovereignty.
An unpredictable court
With the exception of Justice Kentaji Brown Jackson, who ascended to the bench in June, the current Supreme Court has shown a willingness to ignore hundreds of years of precedent in federal Indian law.
Since its inception, a steady parade of lawsuits targeted ICWA. In the most recent challenge to ICWA to reach the Supreme Court, a 2013 case called Adoptive Couple v. Baby Girl, a 5-4 conservative majority put some limits on ICWA.
In June, the court issued a controversial 5-4 ruling in Castro-Huerta, expanding state criminal jurisdiction over Indian land where it previously did not exist. Many tribes and Native advocates saw the ruling as undercutting tribal sovereignty and a negative sign for the upcoming ruling in Brackeen.
While Brackeen challenges ICWA on a federal level, state-specific legislation like ORICWA may be the best protection against some challenges to the law.
State-specific protection
Leonhard said state-specific legislation like ORICWA is the best protection for tribes against some of the challenges to ICWA presented in the Brackeen case.
However, whether ORICWA protects against all potential negative outcomes in Brackeen is a complicated question, Leonhard says.
“The questions (about ICWA) are all over the place, so reading what the Supreme Court is going to do is very, very difficult,” Leonhard said.
If the Supreme Court strikes down parts of ICWA, or the entire law, on an anti-commandeering basis, ORICWA would likely remain unchanged, according to Leonhard.
“I think ORICWA solves many of the problems because the state has adopted it as its own and is going to do it independent of what the federal government, federal law is,” Leonhard said. “So I think it's the best possible thing to do to protect against a potential negative outcome in Brackeen.”
However, the outcome would be dramatically different if the court strikes ICWA down on an equal protection basis.
“So if they strike down the whole of it, or on equal protection grounds, saying somehow Indian is race-based rather than political-based, that's gonna have an effect everywhere on all laws, not just ICWA,” Leonhard said.
In that case, Leonhard says ORICWA would be “difficult to maintain.”
Leonhard and other Indian law experts are hopeful the court does not rule in that direction, as the consequences would be far-reaching.
Decision looming large
A decision in Brackeen isn’t expected for some time — perhaps as far away as June 2023. Until then, advocates for tribal sovereignty are raising awareness about what is at stake and encouraging states to pass state-specific ICWA legislation, which could help protect against some challenges to ICWA in the event of an unfavorable ruling in Brackeen.
Seven states, including Oregon, already passed such legislation.
As for what is at risk with ICWA on trial, Leonhard sums up the incredibly high stakes.
“The survival of the nation depends on it,” Leonhard said. “ICWA is incredibly important. Not just for the child, but for the Indian nation itself.”
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