The Indian Child Welfare Act of 1978 (ICWA) was created to protect the heritage of Native Americans (including Native Alaskan and Hawaiian peoples). ICWA was a response to a high incidence of removals of Native American children by the government and other parties that were placing them with non-Native families or boarding schools in an attempt to assimilate them without any effort to preserve the connection to their own cultural heritage. There is documented evidence of this activity in the United States as far back as the 1870s and may have occurred even earlier. Overtime, this was reducing Native American tribal populations. Haaland v. Brackeen contested the constitutionality of ICWA.
The Case
The case starts with Jennifer and Chad Brackeen (the petitioners in this case), an evangelical couple of Caucasian descent living in Texas. They had fostered and eventually adopted, a Native American boy they’d been fostering. The adoption went through successfully in 2018 and was not in dispute. The boy’s identity is not revealed in court documents, referring to him only as A.L.M. In an effort to keep the child together with his half-sister, the Brackeens attempted to adopt their adopted son’s half-sister. This was contested by the Navajo Nation. A federal judge in Texas ordered shared custody. However, neither the Brackeens, nor the Navajo Nation were satisfied with this arrangement and both appealed the ruling. This dispute at the heart of Haaland v. Brackeen was the fate of this one girl and the precedent to change how child custody cases across the country are handled.
On June 15th, 2023, the Supreme Court ruled 7-2 for the constitutionality of ICWA, which was upheld in its entirety. Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett and Kentanji Brown Jackson formed the majority opinion, while Justices Clarence Thomas and Samuel Alito dissented.
Justice Barret, drafting the majority opinion, heavily relies on the Indian Commerce Clause for Congress’ “plenary and exclusive” power to legislate with regard to Native American tribes, which the Supreme Court interpreted to extend beyond the regulation of trade with Native American tribes and into other Native American affairs. Dissenting Justices Thoms and Alito disagreed on this point, implying that if the Indian Commerce Clause is interpreted to extend into Indian affairs and not limited to commerce, that there is no limiting principle in Congress’ authority to legislate with regard to Native American tribes.
In response to the petitioner’s argument that the active efforts standard enforced by ICWA to avoid removal was a violation of the anti-commandeering doctrine of the 10th amendment of the United States Constitution, the Supreme Court conceded that while the majority of services the states are required to provide to avoid removal under the standard are provided by the state, the law also applies to litigation brought by private parties, and therefore, the argument that the federal government was forcing the states exclusively to provide such services failed to hold up to scrutiny.
The petitioner’s argument that the diligent search requirement for states to find placement didn’t hold up to scrutiny, either. Even though Congress cannot compel states to search databases to ensure a gun sale is lawful, the Supreme Court determined that the diligent search under ICWA is the responsibility of the families and tribes to provide to the investigating agency, rather than state officials themselves to perform that diligent search. While one could argue that the states’ inquiry to the family or tribe constitutes compelling such a diligent search from a state official, this is not how the Supreme Court ruled.
The most controversial allegation of unconstitutionality of ICWA brought by the petitioner is its violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution, along with the ICWA provision granting tribes the sole discretion to alter placement preferences. The Equal Protection clause renders unequal treatment of all peoples under law unconstitutional. ICWA also allows individual tribes discretion to alter the terms and conditions of placement preferences at any time for any reason in cases where ICWA applies.
Dissenting Justices Thomas and Alito expressed concern about the constitutionality of ICWA on Equal Protection grounds- specifically discussing how ICWA makes the ‘best interests’ of the child(ren) a secondary factor in placement- instead favoring a racial or ethnic characteristic (while the best interests of the child(ren) are inconsistently applied in the courts, focusing on the children’s needs is more consistent with the issue of child maltreatment than an immutable characteristic by itself). Justice Kavanaugh, while voting with the majority, expressed his concern about ICWA’s constitutionality on Equal Protection grounds, as well. Although this dissent was not contested, the standing of the petitioners to contest on such grounds was. This does leave ICWA vulnerable to being contested on those grounds in the future if a petitioner is found to have the legal standing to do so.
The Law
ICWA defines and governs all child custody proceedings involving Native American, Alaska Native and Native Hawaiian children (both voluntary and involuntary). For cases that arise on Native American reservations, the respective tribes have full control. Their own Child Protective Service will conduct investigations and any legal involvement will be handled by the tribal courts. Outside of reservations, ICWA also applies to children of Native American heritage who are eligible for membership in a Native American tribe (they do not have to be current members). State and municipal CPS agencies are required by ICWA to screen for any Native American heritage in families they investigate. If there is any, the tribe is notified and if the child(ren) are tribe membership-eligible, the applicable Native American tribe gets involved.
ICWA requires that the active efforts standard be applied to avoid removal of Native American child(ren) instead of the reasonable efforts standard applied to everyone else. The active efforts standard, unique to ICWA as a legal term, most closely resembles the best efforts standard, which is not otherwise used in child protection. The Native American tribe may also offer culturally-sensitive services available only to cases with eligible Native American child(ren).
If removal cannot be avoided, a diligent search must be made to find a placement for the child(ren) with a Native American foster or kinship family of the same tribe. This is independent of location, parental wishes, tribal membership status and whether or not the child(ren) have ever had any exposure to tribal culture. Active efforts must also be made to avoid termination of parental rights. If those efforts fail and parental rights are terminated, ICWA requires adoption preference to go to a Native American family of the same tribe. Once again, this applies without regard to the child(ren)’s exposure to tribal culture of any kind.
Implications for families.
ICWA imposes additional requirements on CPS prior to and during family separation, as well as in adoption proceedings that no other demographic is entitled to. Native American children are entitled to a higher standard of effort to avoid separation and in pursuit of reunification (the active standards standard, as opposed to the reasonable efforts standard that applies to all other demographics), they’re entitled to additional services and tribal advocates. These benefits are not offered to black children, white children, Hispanic children, Asian children, Jewish children, Christian children, Muslim children, disabled children or children or any other demographic or characteristic. ICWA is discrimination for a cause, but it is discrimination, nevertheless. In custody proceedings, if one biological parent is Native American tribe-eligible, they will receive placement preference under ICWA (independent of other potential mitigating factors).
At the same time, data from a 2021 study suggests that removals of Native American children remain high in spite of these unequal protections. It’s not clear why this is the case and whether the majority of such removals under ICWA are occurring on reservations (where individual tribes have more control) or outside reservations (where ICWA still applies and tribes still have involvement, but the state or municipality has jurisdiction). While it could be that Native American cultural practices are getting hit by an overzealous approach to child protection, it’s more likely that in practice, the unequal standards, such as using the active efforts standard instead of reasonable efforts to preserve and reunify Native American Families, are more similar to the mainstream standards in practice than as written on paper.
The argument over ICWA isn’t a new one. It’s been controversial since it was originally passed in 1978. There are valid concerns on both sides. On one hand, you have a people who were slowly being forcibly assimilated and ICWA was designed to correct that atrocity; on the other, even positive discrimination is still discrimination and righting one wrong by discriminating against others isn’t necessarily the right remedy, either. 12 states, most of which have larger Native American populations, have codified local equivalents of ICWA that would’ve been unaffected by this case. Regardless, the controversies surrounding ICWA will continue until the day it arrives at the Supreme Court once again. When will it happen and how will the court rule then? Only time will tell.