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Supreme Court Report
The Supreme Court will consider the future of the Indian Child Welfare Act
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The last time a case involving the Indian Child Welfare Act reached the US Supreme Court in 2013, Justice Anthony Kennedy lamented the often harrowing dilemmas family court judges face in the adjudication of child custody disputes. And the Kennedy, since retired, suggested that his own court could benefit from the help of a higher and wiser power in such matters.
“Our domestic relations judges all by themselves every day have these difficult issues,” Kennedy observed during oral arguments in that case, Adoptive couple v. baby girl. “If we could appoint King Solomon, who was the first judge of domestic relations, as a special teacher, we could do it. But we could not do it.”
So the judges will have to muster all their wisdom to consider a major challenge to ICWA, the 1978 federal law that sets standards for state court proceedings involving Indian children. (Federal law, from the United States Constitution to hundreds of statutes and treaties, refers to the native and indigenous peoples of the United States as Indian).
Responding to concerns about the disintegration 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 have ended up in state court custody proceedings, the law aims to protect. “the best interests of Indian children” with certain procedural requirements and also a preference, “in the absence of good cause to the contrary,” for the placement of an Indian child with “(1) an extended family member of the child; (2) other members of the child’s Indian tribe; or (3) other Indian families.”
“Before ICWA, we faced a crisis,” says Tehassi Hill, the president of the Oneida Nation, a tribe based in Wisconsin. “State agencies have removed up to a third of our native children from their homes. Even when safe homes with their parents were available, the majority of these children were placed outside their families and communities. This separation is the result of a long and tragic effort to erase our culture and our people, to break the connection that our children have with their heritage.
A question of discrimination
Now, ICWA is facing a broad, multipronged legal attack led by the state of Texas, which along with seven individuals has sued the federal government challenging various provisions of ICWA as unconstitutional. Most notable is the attack on the law’s preferences to place 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 argued 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 bolster tribal numbers—is unconstitutional, as are the means the federal government has employed to get this.” 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. Brackento be argued on November 9, has nervous Indian tribe.
“There are some very real, major issues that the court is taking on 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 attorneys representing the Oneida Nation, as well as the Cherokee Nation and the Morongo Band of Missionary 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 are better off,” the tribes said in a brief. “And because ICWA implements this simple idea, it has become the ‘gold standard’ for child welfare.”
Timothy Sandefur, the vice president for legal affairs at the Goldwater Institute, a Phoenix-based legal organization that filed an amicus brief in support of Texas and other ICWA challengers, says the idea of ”standard d “gold” was born in 2013 Adoptive couple case arguing that states should respect the bonds between “a child and his or her birth parents in good standing.”
“The question is what do you do when the birth parent doesn’t fit,” says Sandefur. “ICWA restricts 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 real ‘gold standard.’
In addition to 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 limits when the government The federal government can order the states to perform certain functions. A federal district court issued summary judgment largely in favor of the plaintiffs.
But the US 5th Circuit Court of Appeals ruled in a split en banc opinion that Congress had the authority under Article I to enact ICWA and that the differential treatment of the status of children did not violate the equal protection clause. The court said the statute distinguished between children based on tribal affiliation, which the majority said was a political classification, not a racial one.
The decision led to four separate or cross-petitions for certiorari on both sides of the case, and the Supreme Court granted all four.
Classification of Indian Ancestry
In 2013 Adoptive couple decision, the Supreme Court ruled against an Indian father who sought to remove custody of his biological daughter from an adoptive couple based on the provisions of ICWA. Justice Samuel Alito, in his opinion for the court, noted that ICWA was invoked because the child involved “is classified as Indian because she is 1.2% (3/256) Cherokee.”
His observation appeared to give further impetus to equal protection criticisms—and eventual challenges—of Indian federal status.
“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 and a half, a quarter, or some other fractional amount to establish Indian ancestry.”
In this context, the state argues, “tribal membership, ancestry and descent are only 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, argue that the statute “draws two classifications that are based on race and subject to scrutiny tight”.
The first is its broad definition of “Indian child,” which extends to 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 the fourth tier, behind any other Indian family of any tribe nationwide.
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 considered Indian based solely on the blood in their veins,” he says. “No amount of political affiliation with a tribal entity is enough to make you an Indian if you lack the biological criteria that ICWA requires.”
The federal government (representing US Secretary of the Interior Deb Haaland) and intervening tribes rely heavily on a 1974 decision by the High Court, Morton v. missingwhich said, among other things, that the Constitution authorizes special legislation for the “Indian problem” 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 “missing “ruled out” any contention that the Indian classification was “envious” or “racial” in character,” US 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 Oklahoma-based deputy attorney general of the Cherokee Nation. “They are not racial groups of people. In particular, 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 his race and not his political status as a member or an eligible member of a tribe, which will allow to some of those same challenge groups. other areas of Indian federal law,” Nimmo adds
The federal government and the tribes have numerous allies, including the American Bar Association, which filed an amicus brief emphasizing child welfare and Indian law. He urges the court to decide not based on some of the individual stories emphasized by the challengers, but based on established law and the legislative judgment of Congress.
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 for no reason,” says Charles Martin, the president of the Morongo Band of Missionary Indians. “ICWA keeps children connected to their families, their culture, their tribal community and their heritage.”
See also:
ABAJournal.com: “Supreme Court Should Uphold Indiana Child Welfare Act, ABA Says in Amicus Brief”
ABAJournal.com: “Indian Child Welfare Act Is Constitutional, ABA House Says”
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