Members of the U.S. Supreme Court heard oral arguments in the Brackeen v. Haaland case on November 9, 2022. Credit: U.S. Supreme Court

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This article is being co-published with The Imprint, a national nonprofit news outlet covering child welfare and youth justice.

In an hours-long hearing Wednesday, the U.S. Supreme Court pressed attorneys about whether a 44-year-old law to shield Indigenous children and families from unjust separations goes beyond the power of Congress. 

The Indian Child Welfare Act, or ICWA, was passed by Congress and became law at a time when as many as one-third of all Indigenous children were taken from their homes. The vast majority were sent to live with white families or in residential boarding schools.

The ICWA grants tribal children the right to foster care placements that favor members of their communities and kin.

Plaintiffs in the Brackeen v. Haaland case—three, white adoptive couples and the state of Texas—challenge the constitutionality of the ICWA on multiple grounds. The plaintiffs include Danielle and Jason Clifford of Minneapolis, Minnesota, who tried unsuccessfully to adopt a Native girl after fostering her for nearly two years.

After four years in foster care and six years of court hearings, the girl, identified in court documents only as P.S., is back home with her White Earth community and her grandmother, Robyn Bradshaw. The 11-year-old is a fan of bike riding and has learned to swim. In addition to sharing movie nights, cartoons, and coloring, Bradshaw has sought regalia so her granddaughter can attend powwows. She’s also introducing P.S. to the Ojibwe language.

The case’s defendants include five tribes and the federal government, with hundreds of tribes, 23 states and numerous Indigenous and child welfare organizations signing amicus briefs in support of the ICWA. They say the act is foundational to tribes’ rights and the preservation of Indigenous families and culture.  

Questioning the power of Congress

At Wednesday’s oral arguments, the nine Supreme Court justices often focused on whether some or all of the provisions of the ICWA exceed the “plenary powers” historically granted to Congress to regulate tribal relationships with the national government and states. The word “plenary” was referenced more than six dozen times in the span of three hours of arguments. 

Attorneys for the plaintiffs argued that congressional authority to regulate tribes is largely limited to commerce, and that the court should take a narrow view of that authority as relating solely to business and trade issues, and not child welfare. 

The ICWA “cannot be understood as within the court’s Indian Commerce Clause precedence,” said Matthew McGill of Gibson Dunn. McGill represents the families who are plaintiffs in the case, three couples who sought to adopt Native American children. “It’s not commerce in any normal sense of that word.”

That argument was met with a barrage of questions from justices across the ideological spectrum. Justice Amy Coney Barrett noted that the court has “allowed Congress to far exceed anything that we would think of as just commerce and the sense of trade.” 

She asked McGill, “Are you asking us to overrule all of those precedents?” 

Justice Sonia Sotomayor echoed that question, listing a few such cases where Congress has legislated on issues that had “nothing to do with trade or commerce,” but rather, with “the relationship with Indians, whether on or off reservations.”

McGill replied that Congress does hold plenary powers beyond controlling commerce. “But that power is not unlimited,” he said. 

Justice Elena Kagan remarked that it would be rational to put the ICWA’s provisions within the limits of those powers: “Congress said things like, there’s no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”

Kagan also noted that members of Congress continually describe regulations surrounding Indian children as a matter of “existence.”

Justice Neil Gorsuch suggested that finding the ICWA outside of the plenary bounds would call into question other guarantees made to tribes that might not be considered commerce under a strict interpretation—in particular health care and education services.

“We’d be busy for the next many years striking things down,” he said.  

Is ICWA unfairly burdening states?

Several times, members of the court probed another central issue in the case: “anti-commandeering.” That argument made by the plaintiffs asserts that Congress cannot force state child welfare agencies to carry out the provisions of the ICWAheightened measures that must be taken before tribal children can be removed from their communities and kin. Attorneys for the tribes and the Biden administration argued that the claim is incorrect because ICWA applies to both public and private cases where Native children are adopted. 

Justice Barrett repeatedly honed in on the ICWA’s requirement that “active efforts” be made to prevent entries to foster care or the termination of parental rights when an ICWA-covered child is concerned. She questioned whether that requirement is ever applied to private entities or individuals, or only to states.

“I can’t speak to the whole of the United States, but my understanding is in the overwhelming majority of cases, it falls on the states to do this,” McGill said. 

Ian Gershengorn, representing the tribes, said “madness” would ensue if the court were to weigh anti-commandeering claims based on whether “on balance, they affect more states than private parties.” 

Justice Barrett asked Gershengorn whether he thought Texas could simply exclude Native American children from its foster care systems if it wished to avoid what it perceived as burdensome mandates from the federal government.

“Would there be an equal protection challenge that someone could bring against Texas for treating Indian children differently when it comes to foster placement?” she asked.

Gershengorn said such an action would be a “disaster on the ground.” While Texas is likely not constitutionally required to operate a foster care system, he said, excluding Native American children from it would raise “serious equal protection problems.” 

Justice Gorsuch seemed to take a shot at the plaintiffs’ claims around anti-commandeering, noting that no state court had ever declared any part of the ICWA to be unconstitutional. 

“Is there some irony in your position that you’re here to vindicate state’s rights?” Gorsuch asked McGill. “We have 23 states who’ve lined up on the other side, and we’ve never had a state court near as I can tell, in the 40 some years since ICWA was adopted complaining about this arrangement.” 

Race vs. politics

There was less discussion about whether the ICWA was a race-based law, as the first federal court to hear the Brackeen case had earlier ruled. Many legal experts fear that if the high court were to concur with that characterization, it would jeopardize centuries of federal Indian law. 

Barrett pressed judges for the tribes and the Biden administration on whether there were times that “the classification of Indian operates more like a racial classification because it is unconnected to tribal sovereignty.” She did not ask if the ICWA was an example of that. 

Justices Brett Kavanaugh and Roberts both queried how the third adoption placement preference outlined in the ICWA—that children are placed with Indian families of a different tribe than their own—could be seen as political and not racial. 

McGill concurred, saying that “if the objective is preserving the existence of tribes, the third placement preference does nothing to effectuate.”

Both Gershengorn and Justice Department Deputy Solicitor General Edwin Kneedler pointed out that neither side in the case had been able to identify a case in which the third placement preference for adoptions had ever applied in an appeal of  theICWA before, at the state or federal level. 

Attorney Gershengorn said it “would be very odd to strike down a congressional statute” based on a situation where the law had never been applied. 

Best interests and good cause

The session was not without its discussions about the children at the center of foster care and adoption cases, and whether the ICWA’s provisions are in their best interests. 

McGill—representing the Brackeens, an evangelical couple from Fort Worth, Texas, and two other adoptive families—said there are only 2,000 Native American foster homes in the country, which leads to thousands of Native children living in “non-Indian foster homes.”

“Sometimes they bond with those families,” McGill said. “Yet when those families try to adopt those children, ICWA rears its head for a second time, allowing tribes to play the proverbial ICWA trump card at the 11th hour.”

Chief Justice John Roberts focused much of his time on the “good cause” exceptions under the ICWA that a court can consider to depart from the law’s placement preferences that prioritize relatives and tribal members. Good cause exceptions include the views of the parents, the child, and take into consideration the need for sibling attachments.

Roberts asked whether those exceptions were sufficient to guarantee that decisions were made in the best interests of the child—the widely accepted standard for foster care and adoptive placements of all types. 

In defending the law, attorney Gershengorn said the ICWA’s passage was prompted by the misapplication of the best interests standard when tribal children are involved. 

“Congress made the judgment that the best interest standard was being applied in a way that resulted in unwarranted removals,” he said. “What Congress did was create a system it thought was in the best interest of the child, but not by adopting the state’s best interest of the child standard, because it found that that was being applied in a discriminatory way.”

The good cause exceptions do not allow courts to use the socioeconomic status of relatives or tribal members as a reason to depart from the placement preferences. 

A four-year journey 

Brackeen v. Haaland began working its way through the federal courts in October of 2018, when U.S. District Court Judge Reed O’Connor of Texas declared ICWA unconstitutional, calling it a race-based law, a view no federal judge had ever taken. After establishing that position in the state’s northern district—under which the ICWA would be subject to a “strict scrutiny” analysis — O’Connor ruled that the government had failed to articulate a present-day need for the law.

“The Federal Defendants have not offered a compelling governmental interest that the ICWA’s racial classification serves, or argued that the classification is narrowly tailored to that end,” O’Connor wrote. “Because the government did not prove—or attempt to prove—why the ICWA survives strict scrutiny, it has not carried its burden to defend the ICWA.”

O’Connor also cited a 2018 Supreme Court decision about sports gambling in ruling that the ICWA unfairly expected states and tribes to enforce federal standards, which he said ran afoul of the anti-commandeering doctrine in the Tenth Amendment. 

Three years later, a second key decision landed in the Brackeen case. In a 325-page decision in April of 2021, the Fifth Circuit Court of Appeals rejected O’Connor’s analysis of the ICWA as a race-based law. A majority of the court concurred that the ICWA fit within the long-held test that “if a statute is reasonably related to the special government-to-government political relationship between the United States and the Indian tribes, it does not violate equal protection principles.” 

But the circuit was evenly divided on other issues in the case. A majority of the court ruled that three ICWA provisions did unconstitutionally commandeer state child welfare agencies: the requirement of “active efforts” to prevent foster care removals and promote family reunifications; another requirement that states hire qualified expert witnesses to testify when foster care or termination of parental rights is on the table; and certain record-keeping mandates. 

The court also ruled that placement preferences established by the ICWA that favor family members and homes approved by tribes are commandeering to the extent that they “require implementation efforts by state agencies and officials.”

The case went next to the nation’s highest court. In February of this year, the Supreme Court granted Brackeen v. Haaland a hearing. 

If the Supreme Court does rule that the ICWA is a race-based law, the tribes that are parties to the case have asked that the court have the Fifth Circuit Court of Appeals hear arguments about whether the law survives strict scrutiny. But regardless of the ICWA’s fate on that test, such a ruling from the high court could potentially touch off scores of other challenges to Indian law.

If the court finds some or all of the ICWA unconstitutional on other grounds—namely an interpretation of the Indian Commerce Clause or anti-commandeering doctrine—there are 11 states that would be shielded from major effects because they have codified some or all of the ICWA protections under state law.

The states include Alaska, California, Iowa, Michigan, Minnesota, Nebraska, New Mexico, Oklahoma, Oregon, Washington and Wisconsin. Eighty-two percent of federally recognized tribes in the United States live in those 11 states, according to the Department of the Interior’s database

This is the third time that the Supreme Court has taken up a case regarding the Indian Child Welfare Act. In 1989, in Mississippi Choctaw v. Holyfield, the Rehnquist court ruled that the ICWA governs all adoptions of Native American children, and that tribal courts have jurisdiction over state courts if the parents or baby reside on a reservation. 

The abusive conditions at Indian boarding schools that led in part to the passage of the ICWA have come under scrutiny in Canada and the United States in recent years. The U.S. Department of the Interior is in the midst of a historic federal investigation of the intergenerational impacts and ongoing trauma resulting from forced attendance at the schools, as well as producing a first-ever count of children’s unmarked graves.

Interior Secretary Deb Haaland—the nation’s first Indgenous cabinet secretary and an enrolled member of the Laguna Pueblo tribe in New Mexico—is now leading a national “healing tour” allowing survivors of the boarding school era to speak out about their experiences. 

A ruling from the high court will come down in Brackeen v. Haaland by the end of June.

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John Kelly is a senior editor at The Imprint and can be reached at jkelly@imprintews.org.