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U.S. Supreme Court,
Native Americans

Nov. 9, 2022

Supreme Court to hear constitutional challenge to the Indian Child Welfare Act

The conflict between the states, such as California, which support ICWA and those who challenge it, presents a stark contrast.

Paso Robles Branch

Michael C. Kelley


Family Law

Yale Law School

Edmund D Edelman Children's Court

Gabriela H. Shapiro


Southwestern University School of Law, 1996

Even casual readers of the Daily Appellate Reports are probably aware that the California courts of appeal have been wrestling with a wave of juvenile dependency cases raising issues under the Indian Child Welfare Act ("ICWA") 25 U.S.C. section 1900 et seq. One issue in particular, concerning application of the harmless error doctrine when inquiry into a child's potential status as an "Indian child" is alleged to have been deficient has spawned a divergence of rules which the California Supreme Court recently determined it would resolve. See In re Dezi C. No. S275578, review granted Sept. 21). Justice Brian M. Hoffstadt recently wrote an excellent summary of this issue. (See Divide and Prejudice, Daily Journal, Sept. 23).

This column is about a broader and more fundamental ICWA issue - whether this foundational federal statute, which was passed in 1978 and has influenced how state courts conduct child custody proceedings for more than 40 years, will survive a challenge to its constitutionality. In Brackeen v. Haaland (21-376, 21-377, 21-378, 21-380), which is set for argument today (Nov. 9), the Court will decide several key issues raised by three states and several individuals who filed suit in federal court in Texas and were successful in obtaining a 2018 judgment that declared ICWA to be unconstitutional. See Brackeen v. Zinke 338 F. Supp. 514 (N.D. Tex. 2018) affirmed in part and reversed in part in Brackeen v. Haaland 994 F.3d 249 (5th Cir. 2021).

The Fifth Circuit Opinion

The en banc decision by the Fifth Circuit, which the Supreme Court has decided to review, runs to more than 200 pages in the Federal Reporter. It also contains such a multiplicity of separate opinions (seven in total) addressing the numerous issues raised in the case, that the court issued a separate "per curium" opinion to provide a roadmap. Id. at 267 ("issue-by-issue summary of the en banc court's holdings.") We will summarize here only the principal holdings as a means of highlighting the major issues that the U.S. Supreme Court will have to resolve.

First, an en banc majority of the 16 circuit judges reversed the District Court's ruling that Congress lacked authority to enact ICWA under Article I of the Constitution. Second, a majority also reversed the lower court ruling that the Act's classification of who qualifies as an "Indian child," which is the threshold requirement for the application of most of ICWA's provisions, violated equal protection. Third, an evenly-divided panel affirmed the District Court's ruling that two specific provisions of ICWA related to adoptive placement preferences for "other Indian families" under 25 USC § 1915 (a)(3) and foster care placement preferences for a licensed "Indian foster home" under § 1915(b) (iii) violated equal protection. Because the affirmance was based on a divided panel, this aspect of the decision is not precedential. Fourth, the various holdings on the so-called "anti-commandeering" issues were, in the words of the per curium opinion, "more intricate." An en banc majority affirmed the District Court's ruling that the anti-commandeering doctrine invalidated ICWA's "active efforts" (§ 1912(d)); expert witness (§ 1912 (e) and (f)) and recordkeeping requirements (§ 1915 (e)). A divided panel affirmed the District Court's ruling that ICWA's placement preferences, (§ 1915(a)-(b)), violated anti-commandeering to the extent they direct action by state agencies and officials as well as the District Court's ruling that ICWA's notice provision, (§ 1912(a)), unconstitutionally commandeered state agencies. Also, a divided panel affirmed the District Court's ruling that the placement record provision, (§ 1951(a)), unconstitutionally commandeered state courts.

Issues in the Supreme Court

The major issues the Supreme Court will have to address fall into three broad categories: 1) Whether the minimum federal standards that ICWA imposes for state court child custody proceedings exceed Congress's plenary power over Indian affairs; 2) Whether the plaintiffs' equal-protection challenge are justiciable and if so whether ICWA violates the equal-protection component of the Due Process Clause of the Fifth Amendment; and 3) Whether specific minimum federal standards imposed by ICWA violate the anti-commandeering doctrine. We will discuss the positions of the contending parties and their supporting amici on each of these major issues and then identify some potential implications for California if the constitutional challenges are sustained in whole or in part by the Supreme Court.

The Challenge to Congressional Power to Enact ICWA

The principal merits brief on behalf of the parties challenging ICWA is submitted by the State of Texas. It argues that neither the Indian Commerce Clause nor the Indian Treaty Clause in the Constitution vest Congress with the "supreme power to deal with Indian tribes... let alone to enact ICWA" as found by the en banc majority of the Tenth Circuit. (Texas Br. at 22.) With respect to the Indian Commerce Clause, the brief argues that "child custody proceedings regarding Indian children" fall outside of the scope of "commerce" under both a historical interpretation and more modern "expansive" definition. Id. at 23 ("Child-custody proceedings fit none of these: children are not commodities, and child-custody disputes are not matters of commerce.")) With respect to the Indian Treaty Clause, the brief argues that it does not authorize Congress to "act legislatively- particularly in the domestic sphere." It also contends that permitting Congress to predicate domestic legislation that affects the states on the Treaty clause would be harmful to notions of federalism pointing out that, in the arena of international treaties, the Court had already determined that treaties cannot "change the horizontal allocation of power among the different branches of government" (citing Medellin v. Texas, 552 U.S. 491, 504 (2008)) and that the same prohibition should apply to "the vertical allocation between the federal and state governments." (Id. at 25.)

The Solicitor General, on behalf of the federal parties defending ICWA, argues that Congress has plenary power to "deal with the special problems of Indians" and that power is drawn "both explicitly and implicitly from the Constitution itself." The brief notes numerous legislative examples of Congress exercising "plenary" power over Indian affairs, including statutes that "extend well beyond economic activity." (Federal Parties Br. at 19.) It also argues that Congress explicitly invoked this "plenary power over Indian affairs," which it contends is "grounded in the Indian Commerce Clause and 'other constitutional authority'" when it enacted ICWA (Id. at 4 (citing 25 U.S.C. 1901(1).) This brief also notes that Congress specifically cited "the special relationship between the United States and the Indian tribes and their members," explaining that "through statutes, treaties, and the general course of dealing with Indian tribes," Congress "has assumed the responsibility for the protection and preservation of Indian tribes and their resources." (Id. (citing 25 U.S.C. 1901(2)). On this issue, the majority of the en banc Fifth Circuit had agreed when it upheld Congress's authority to enact ICWA.

Finally, relying on two prior Supreme Court cases, Perrin v. United States, 232 U.S. 478 (1914) and Morton v. Mancari, 417 U.S. 535 (1974), the brief argues that ICWA must pass muster because it is "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." Mancari, 417 U.S. at 555 and "Congress is invested with a wide discretion" in "determining what is reasonably essential to the protection of the Indians." Perrin, 232 U.S. at 486.

A notable amicus brief on the issue of Congressional authority to enact ICWA was prepared by the California Attorney General on behalf of 23 states. It argues that the Supreme Court "has long recognized that the Constitution's war, treaty, and commerce powers authorize the Federal Government to manage relations with Indian Tribes." (California Br. at 3. It also contends that "[b]ecause ICWA concerns a matter of the utmost importance to tribal relations - the ability of Tribes to sustain their existence by raising children who are connected to their tribal communities - Congress did not exceed its enumerated powers in enacting the statute. (Id.)

The conflict between the states, such as California, which support ICWA and those who challenge it, presents a stark contrast. As Fifth Circuit Judge Dennis pointedly observed in his opinion "we cannot ignore the irony of the situation with which we are faced. Twenty-six states and the District of Columbia, which are home to a large majority of federally recognized tribes and the nation's overall indigenous population, do not view ICWA as any sort of burden on their child welfare systems. They strongly contend that ICWA is constitutional and have no problem applying it in their state court systems; indeed, they view ICWA as the "gold standard" for child welfare practices and a "critical tool" in managing their relationships with the Indian tribes within their borders. Conversely, only four states with relatively few tribes and Indians regard ICWA as offensive to their sovereignty and seek to have the law struck down completely because it intrudes upon their otherwise unimpeded discretion to manage child custody proceedings involving Indian children." Brackeen v. Haaland, supra at 270.

The Equal Protection Challenge to ICWA

As a threshold matter, the Supreme Court will have to address the standing of the states to assert an equal protection challenge to ICWA as well as the standing of the individual plaintiffs, who are non-Indian prospective adoptive parents or foster parents who claim to have been discriminated against by ICWA's provisions for the placement of Indian children.

On the merits of the equal protection issues, the challengers assert that ICWA's definition of an Indian child is a racial classification and not a political one. This is because the definition of Indian child (any minor who is "(a) a member of an Indian tribe" or "(b) [] eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4)) extends ICWA to children who are not tribal members but who are eligible for such membership due to their connection to the tribe by having some threshold quantum of Indian blood. Thus, it is argued that "tribal membership, ancestry, and descent are simply proxies for race." (Texas Br. at 42.)

The federal parties take the opposite view, contending that "[s]tatutory classifications distinguishing between Indians and non-Indians are "political rather than racial" when they are designed to fulfill "Congress' unique obligation toward the Indians." (Federal Parties Br. at p. 54 (citing Mancari, 417 U.S. at 553 n.24, 555.)) The brief goes on to argue that '[r]elying on the "unique legal status of Indian tribes under federal law," including the constitutional text granting Congress power "to deal with the special problems of Indians," the Court [in Mancari had] determined that the statute applied "to Indians * * * as members of quasi-sovereign tribal entities" and thus constituted a "political rather than racial" classification." (Id. at 58.)

The amicus briefs of both California and the Los Angeles Department of Children and Family Services also argue that ICWA makes no racial classification because the definition of Indian child is based upon the child's actual or potential political affiliation rather than race. The California brief also contends that the argument that classifications based on Indian status are racial, would also "call into question numerous state statutes" including statutes "modeled after ICWA" as well as a "multitude of other types of state enactments" which would "for the first time" become subject to strict scrutiny." (California Br. at p. 30) The DCFS brief makes the same point, but also points out that California is one of many states that have enacted all or part of ICWA into state law, (DCFS Br. at 6, n 5.) It also emphasizes the importance of California's statutory provisions implementing ICWA to Los Angeles, which is home to more than 163,000 American Indian and Alaska Native persons, "more than any other county in the United States. (Id. at 2.) ["Despite Los Angeles County's significant American Indian and Alaska Native population, the county does not have a single federally recognized Native American reservation within its borders.]

The Challenge to ICWA Under the Anti-Commandeering Doctrine

The parties challenging ICWA also contend that, in a number of respects, the statute violates the anti-commandeering doctrine. This doctrine has been defined generally as a structural limitation on Congress which specifically prohibits it from canalizing the states' sovereign authority to regulate private actors by directly compelling states to enact or not to enact legislation, or to administer or enforce a federal regulatory program. Texas and the other parties challenging ICWA invoke this doctrine to challenge several elements of ICWA - including its notice requirements, reunification requirements, expert-witness retention requirements, and placement records maintenance requirements. (Texas Br. at 60.) Texas argues that ICWA's regulatory provisions directly compel state governments to execute federal law, and thus "the very principle of separate state sovereignty is offended." (Texas Br. at 61.)

Although it is clear that state courts, child welfare agencies, and private foster care and adoption agencies are obligated to comply with these federal provisions in child-custody proceedings, the brief in support of ICWA by California and other states posits that ICWA does not "do any of the things the [anti-commandeering] doctrine prohibits" because it merely "confers rights on individuals involved in child-custody proceedings--- making it a valid federal statute with preemptive effect. California Br. at 3.) They maintain that the anti-commandeering doctrine has no application to ICWA, because ICWA regulates both states and private actors alike. (California Br. at 20-21; see Reno v. Condon, 528 U.S. at 151.) The brief filed by these states goes on to say that "rather than impermissibly seeking to commandeer state governments, the challenged provisions of ICWA properly confer substantive federal rights and restrictions on parties in state child-custody proceedings." (California Br. at 19.)

The federal parties similarly assert Congress may "pre-empt contrary state regulation" citing New York v. United States, 505 U.S. at 178. Furthermore, they argue that "Congress exercised that authority in ICWA - regulating directly the removal and placement of Indian children by establishing "minimum Federal standards" for the protection of Indian children, families, and tribes. 25 U.S.C. 1902. ICWA thus validly preempts contrary state law and presents no anticommandeering problem." (Federal Br. at 34.)

To resolve this issue, the Supreme Court will need to determine whether ICWA "properly confer[s] substantive federal rights and restrictions on parties in state child-custody proceedings," or whether it unconstitutionally permits the federal government to order state agencies and actors to comply with its regulations.

Implications for California

Although the outcome of Haaland v. Brackeen will not be known until later this term, if the Supreme Court decides that some or all of ICWA's provisions are unconstitutional, the question of what the implications of such a ruling might be for California dependency law will have to be confronted. Assessing those implications will be complicated by the fact that, perhaps more than any other state, California has legislatively adopted (and in some instances expanded upon) ICWA's protections for Indian children, families and tribes, as part of the state's child custody law.

Senate Bill 678, also referred to as Cal-ICWA, was passed in 2006 and incorporated ICWA into provisions of the California Welfare & Institutions Code, Family Code and Probate Code establishing even more rigorous guidelines to protect Indian children and their families. As one amicus brief states, "[t]he ICWA is an integral part of California's juvenile dependency scheme and is vital to promote the interests of Los Angeles County's Indian children." (DCFS Br. at 4.)

The strength of California's embrace of ICWA's policies is evident in the declaration of purpose in WIC section 224: "There is no resource that is more vital to the continued existence and integrity of Indian tribes than their children, and the State of California has an interest in protecting Indian children who are members or citizens of, or are eligible for membership or citizenship in, an Indian tribe. The state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices, in accordance with the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.) and other applicable state and federal law... ."

The parties opposing the constitutional challenges to ICWA predict dramatic consequences if it is struck down in whole or in part. As the California brief expresses the point in making the case for the interests of the states supporting ICWA "[these] [a]mici comprise small States and large ones, from every corner of our Nation, with a wide range of political beliefs and policy preferences. We disagree on many things. But we all agree that ICWA is a critical - and constitutionally valid - framework for managing state-tribal relations, protecting the rights of Indian children, and preventing the unwarranted displacement of Indian children from their families and communities." (California Br. at 1.)

Recognizing that many states have embraced ICWA, the California brief also states "[t]o be sure, in the absence of ICWA, States might act on their own to address the policy concerns underlying ICWA. But ICWA provides a valuable foundation for those efforts, establishing a nationwide baseline policy upon which States can build their own laws. Invalidating the statute in whole or in part could force States and Tribes to start from scratch. That would unnecessarily disrupt well-settled practices, while also threatening to undermine the positive results States and Tribes have achieved under ICWA." (California Br. at 11.)

These sentiments were expressed even more strongly by the DCFS brief "The Indian Child Welfare Act (ICWA) is vital to promote the interests of Los Angeles County's Indian children. The ICWA was designed to preserve tribal identity and to protect Indian tribes and families whose ancestors were forcibly dispersed from their reservations. Despite Los Angeles County's significant American Indian and Alaska Native population, the county does not have a single federally recognized Native American reservation within its borders. If this Court finds the ICWA unconstitutional, the decision will have a dramatic impact on Los Angeles County and its duty to protect children and preserve familial ties." (DCFS Br. at 1.)

For its part, the Los Angeles County Superior Court established a specialized ICWA department more than twenty years ago at the Edmund D. Edelman Children's Court. This department works to prevent the breakup of Native American and indigenous families through the reunification process and in compliance with the ICWA's placement preference. Though non-Native child abuse and neglect cases are also heard in this department, the ICWA court has particular expertise in working in collaboration with Native American tribes, ICWA specialists, and tribal attorneys to preserve Native families, and their rights to raise their children within their culture and community. Although every dependency court also has an ongoing obligation to conduct inquiries in a dependency case to determine whether ICWA applies, when a case is determined to be subject to ICWA, tribes generally intervene and participate in all proceedings as parties. Having the specialized ICWA department to handle these cases, including assuring that the tribes receive notices, copies of reports, and can participate in the decisions which impact the Indian child, helps to facilitate these essential proceedings and advance the underlying purposes of ICWA and the California legislation implementing it.


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