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Mary Annette Pember
ICT

The words “Equal Justice Under Law” are inscribed above the U.S. Supreme Court building in Washington, D.C. 

The terse phrase powerfully underscores the conviction that the nation’s judiciary occupies a special plane of existence in which momentous decisions are made in a protected sphere of legal purity.

For many Supreme Court watchers, however, the court’s recent rulings overturning abortion rights, expanding gun rights, limiting the authority of the Environmental Protection Agency and blurring the lines separating church and state reflect the alarming impact of an ultra-conservative majority among justices.

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Indeed, a September 2022 Gallup poll shows that 42 percent of Americans think the Supreme Court is too conservative, a new high for that response.

The trend could spill over onto how justices view the Indian Child Welfare Act, a law supported by the sovereignty of tribal nations that many opponents insist is race-based.

On Wednesday, Nov. 9, the Supreme Court will begin hearing oral arguments in Haaland v. Brackeen, a case that will decide if the ICWA is constitutional.

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The case has enormous implications for Indian Country, its children and the ongoing existence of tribal sovereignty, said Sarah Deer, professor at the University of Kansas and chief justice for the Prairie Island Indian Community. Deer is a citizen of the Muscogee (Creek) Nation.

“Most opposition to the ICWA focuses largely on the flawed assumption that Native people are strictly a racial category,” Deer said, “rather than citizens of independent sovereign governments.”

Broad constitutional issues

It’s not an easy, either/or decision for the court, since the case addresses several elements of constitutional law.

The ICWA, enacted in 1978 by Congress, came in response to reports that large numbers of Native children were being separated from their families and communities by state welfare officials and private adoption agencies.

The law gives tribal nations the right to be involved in child welfare cases involving their citizens, in hopes of keeping Indigenous children with their family and tribe.

The lawsuit that has reached the Supreme Court was filed by the state of Texas and several adoptive parents, claiming that the ICWA unfairly discriminated against non-Native people in the adoption process by setting a preference for Indigenous parents over non-Indigenous. The preference violates a provision for equal protection under the law in the U.S. Constitution, they argue.

Supporters, however, point out that tribal citizenship is not a racial classification but rather a political, legal status. And they argue that a ruling by the Supreme Court that the ICWA is unconstitutional based on race could take Indigenous rights back to a pre-civil rights era in which White hegemony was accepted as an indisputable norm.

Such a ruling could open the door to challenging the entirety of Indian law and tribal sovereignty, they say – which could be the point for the diverse group of people and organizations that have banded together in opposition to the act in recent years.

Sarah Deer, Muscogee (Creek) Nation, is a professor at the University of Kansas and chief justice for the Prairie Island Indian Community. (FILE photo courtesy of the John D. and Catherine T. MacArthur Foundation)

The law chugged along in obscurity for most Americans for about 35 years, offering guidelines for placement of Native children within the country’s child welfare systems. Mostly unnoticed and unknown by non-Native people during this time, the ICWA includes what is considered the gold standard or guiding principles for child welfare systems, including interagency collaboration, acknowledging each child’s and family’s strength and challenges, cultural competence, respect and partnership between families and professionals, and engaging community based services and accountability.

In 2013, however, the well-known Adoptive Couple v. Baby Girl case, also known as the Baby Veronica case, went before the U.S. Supreme Court, which held that the ICWA does not bar termination of the biological father’s paternal rights. Covered extensively in the media, the law was often framed as draconian and race-based, unfairly depriving children of their best interests and constitutional due process.

Cases reported in mainstream media often frame the ICWA as a racist law that allows tribes to take children away from loving families because the child may have a miniscule amount of Native blood, according to Deer, the Kansas lawyer and judge.

“In fact, most ICWA cases are so conventional they don’t warrant any particular media attention,” Deer said. “Most media coverage focuses on a handful of specific, high-profile cases that actually involve a dispute … They don’t cover the successful stories.”

A tribe, for example, may choose to intervene in a child welfare case without exerting jurisdiction.

“Intervening simply means that a tribe has the ability to come in and make recommendations regarding a child,” said Stacey Lara, an assistant teaching professor at the University of Washington School of Law.

Although data is difficult to obtain since ICWA actions vary from state to state and tribe to tribe, there are many instances in which tribes choose not to intervene or exert jurisdiction at all for a number of reasons, including lack of resources.

And tribes that do intervene may recommend the child remain with a non-Native family member, Lara said.

“ICWA, at its heart, is really about a tribe being involved with decisions that affect the best outcomes for the child,” Lara said. “The law’s preference is keeping families together.”

Notably, there are no legal penalties for failing to abide by the ICWA, and oversight of the law is largely left to the court system.

Growth of ICWA opposition

Additional challenges to the law followed the widespread media coverage of the 2013 Baby Veronica case.

Organizations such as the National Council for Adoption claimed the law violated the U.S. Constitution on several counts, including denying Native children due process and equal protection, and commandeered state agencies for federal purposes, exceeding Congress’s authority in Indian affairs. Other efforts challenged ICWA’s state and federal provisions on proof for child removal, placement preferences and termination of parental rights.

As ICT reported in 2019, opposition to the ICWA has united a seemingly disparate group of organizations and interests whose ultimate goal appears to be in gaining access to Indian Country’s land and resources, including Native children. People and organizations forwarding Federalist philosophies have also joined opposition to ICWA, seeing it as an opportunity to further an agenda favoring states rights over federal policies.

In January 2021, the Fifth U.S. Circuit Court of Appeals took the unusual step of holding a special hearing of the full court, and vacated an August 2020 decision by a three-judge panel that concluded the ICWA was not a race-based law and therefore constitutional.

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The appeals court issued a complex, 352-page ruling in April 2021 that generally upheld Congress’ right to enact the ICWA and ruled that the law’s definition of “Indian child” doesn’t operate on the basis of race and therefore doesn’t violate Article 1 of the 14th Amendment regarding equal protection.

The ruling, however, found ICWA unconstitutional based on claims that the act violates the anti-commandeering doctrine included in the 10th Amendment. According to the doctrine, the federal government can’t make states adopt or enforce federal law, such as the ICWA. This means that the federal government can’t require state agencies to give notice to tribes or require qualified witnesses in adoption cases, or require states to keep records on Indian child welfare cases.

Many legal experts attribute claims that ICWA violates the anti-commandeering doctrine to the rise of conservative groups and politics supporting states’ rights over federal authority.

Opponents and supporters of the ICWA filed four petitions to the U.S. Supreme Court in the case. The opposing petitions raise constitutional questions that included equal protection, legal standing, anti-commandeering and nondelegation. They also claim that ICWA violates the Administrative Procedures Act.

The United States and four intervening tribes — the Cherokee Nation, Morongo Band of Mission Indians, the Oneida Nation and the Quinault Indian Nation — filed petitions defending the ICWA and its constitutionality.

The outpouring of support for the act has been substantial. Nearly 500 tribal nations, scores of Native organizations, members of Congress and child welfare organizations have signed on to 21 friend-of-the-court briefs in defense of ICWA.

Among those working to defend the landmark legislation include attorneys with the Native American Rights Fund, the National Congress of American Indians and several tribes, all of whom have banded together under the Tribal Supreme Court Project to help tribes develop litigation strategies regarding ICWA.

The goal for tribes and most Native people is simple — protecting their children.

“I am not aware of a case that has generated this much support in Indian Country,” said Dan Lewerenz, assistant professor at the University of North Dakota school of law and a contract attorney for the Native American Rights Fund.

“Our children are very important to us, so it’s heartening to see how much support we’ve gotten from outside Indian Country as well,” said Lewerenz, who is a citizen of the Iowa Tribe of Kansas and Nebraska.

Bad timing for Indian law

The cases the Supreme Court is considering this term, including the ICWA, may reflect the decidedly conservative bent of the majority of its justices. Former Republican President Donald Trump appointed three justices to the court – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. They join the other conservatives – Chief Justice John G. Roberts and Justices Clarence Thomas and Samuel A. Alito – for a 6-3 majority on the court.

In addition to the ICWA case, the court is also set to consider this term two voting rights cases that contend voting practices discriminate on the basis of race, challenges to affirmative action in student admissions at Harvard University and the University of North Carolina, a free speech claim from a website designer who opposes same-sex marriage, as well as a challenge to the Clean Water Act of 1972.

With the exception of Gorsuch, who wrote the majority opinion in the McGirt v. Oklahoma opinion finding that much of the eastern portion of Oklahoma remains as Indian lands, few of the other justices have experience litigating cases relating to Indian law.

Earlier in 2022, Kavanaugh delivered the Castro-Huerta v. Oklahoma opinion, which partially walked back McGirt v Oklahoma by holding that the federal government and the state have concurrent jurisdiction to prosecute crimes by non-Indians against Indians in Indian Country.

What’s ahead

The Supreme Court justices’ lack of experience in Indian law, an ultra-conservative stance on race and a demonstrated support for a federalist agenda raises the likelihood that the ICWA could be dismantled by the court, Indian law experts say.

The current Supreme Court has demonstrated it cares about states’ rights and is hostile to any programs that attempt to remediate past racial discrimination, according to Elizabeth Hidalgo Reese, a citizen of the Nambe’ Pueblo and an assistant professor at Stanford Law School.

“There are just so many ways to lose this case,” Reese said. “This doesn’t bode well for the ICWA.”

In one of the worst-case scenarios, she said, the court could rule that the law violates the U.S. Constitution’s guarantees of equal protection regardless of race.

“This would be incredibly disruptive to the rest of Indian law and tribal sovereignty,” Reese said.

A decision finding the ICWA unconstitutional based on Article 1 of the Constitution, in which Congress is granted the power to regulate commerce with Indian tribes, could be equally catastrophic. Such a decision would declare that Congress has no power to pass laws such as the ICWA, thereby calling decades of its decisions in Indian law into question.

“The scope of Congress’s power over Indians has been a cornerstone of federal Indian law for a very long time,” Reese said. “Almost every law passed by Congress involving Indians would now come under a microscope.”

The U.S. Supreme Court heard oral arguments Wednesday, Nov. 9, 2022, in Haaland v. Brackeen, a case that will decide if the ICWA is constitutional. Outside, ICWA supporters were on site in numbers. (Jourdan Bennett-Begaye, ICT)

Many Supreme Court watchers have also noted that Justice Clarence Thomas has expressed an interest in the Indian Commerce Clause. In Turtle Talk, the leading blog on legal issues in Indian Country, Matthew Fletcher quoted Thomas’s opinion in United States v. Lara.

“I cannot agree that the Indian Commerce Clause provides Congress with plenary power to legislate in the field of Indian Affairs,” Thomas wrote.

Fletcher, a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians, is a law professor at the University of Michigan School of Law and director of the Indigenous Law and Policy Center.

If the court finds the law unconstitutional under the anti-commandeering clause, however, it’s likely that only the ICWA would be impacted. At least six states have enacted their own ICWA laws, which include provisions from the federal act.

Such a decision, Reese said, “would be about the mechanics of the specific ICWA statute which tell states how they implement the law.”

As Reese notes, the constitutional challenges to the law are very broad.

“So many people are focused on the race issue in this case; I feel like everybody’s about to get blind-sided by the court’s decision,” she said. “We need to be listening very closely during oral arguments, The outcome could be a bit of a surprise.” 

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