ICWA’s Constitutionality Challenged and Review by the Supreme Court Underway

On February 28, 2022 the U.S. Supreme Court agreed to hear a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). ICWA came under intense scrutiny in an April 2021 en banc decision of the United States Court of Appeals for the Fifth Circuit. In Brackeen v. Haaland, the Fifth Circuit considered a challenge to the constitutionality of ICWA brought by Texas, Louisiana, Indiana, and several individual plaintiffs.  A sharply divided court generally upheld the constitutionality of ICWA.  However, as a result of its divided ruling, the Court also upheld the lower court’s decision that certain provisions concerning the placement preferences of Native children for Indian homes as well as certain ICWA processes violated the Constitution.  Finally, the Court ruled that the corresponding provisions of the law’s implementing regulations violated the Administrative Procedures Act (APA). The Supreme Court has now granted, and consolidated, four petitions for a writ of certiorari that raise overlapping questions on several constitutional doctrines, including equal protection, standing, anticommandeering, and nondelegation, as well as APA considerations. The case is expected to be argued in the fall 2022.

Purpose of the ICWA and Its Success for AI/AN Children

ICWA was created in 1978 by the federal government to re-establish tribal authority over the adoption of Native American children. The goal of the Act was to strengthen and preserve Native American family structure and culture. Studies conducted in advance of ICWA’s drafting showed that between 25% and 35% of all Native children were being removed from their home by state child welfare and private adoption agencies. Of those, 85% were placed with non-Native families, even when fit and willing relatives were available. ICWA was established as a safeguard that requires placement cases involving Native American children be heard in tribal courts, if possible, and permits a child’s tribe to be involved in state court proceedings. It also requires testimony from expert witnesses who are familiar with Native American culture before a child can be removed from his or her home. If a child is removed, either for foster care or adoption, the law requires that Native American children be placed with extended family members, other tribal members, or other Native American families prior to placement in non-Indian homes.  For a more complete explanation of the requirements of ICWA, please visit the Native American Rights Fund’s “Practical Guide to the Indian Child Welfare Act.”

As eighteen leading national child welfare organizations, including Casey Family Programs and the Child Welfare League of America, attested to the Supreme Court, ICWA represents “the gold standard for child welfare policies and practices that should be afforded to all children.”  According to the National Indian Child Welfare Association (NICWA), ICWA “[l]essens the trauma of removal by promoting placement with family and community . . . [p]romotes the best interest of Indian children by keeping them connected to their culture, extended family, and community, which are proven protective factors . . . [and] [p]romotes placement stability by ensuring that voluntary adoptions are truly voluntary,” among other benefits.  Positive and continuing connections to one’s family, community, and culture, are key factors in ensuring health and well-being.

However, despite the progress which has been made since 1978, the need for ICWA remains today.  According to NICWA, “Native children are removed from their homes at 2–3 times the rate of their white counterparts and often are not placed with relatives or other Indian families, even when such placements are available and appropriate.  In addition, “Native families are the most likely to have children removed from their homes as a first resort, and the least likely to be offered family support interventions intended to keep children within the home.”

Legal Proceedings and Opposition to ICWA

In Brackeen, Texas, Indian, Louisiana, and individual plaintiffs sued the federal government, arguing that ICWA and its implanting regulations are unconstitutional because they violate the equal protection and substantive due processes provisions of the Fifth Amendment and violate the anticommandeering doctrine of the Tenth Amendment.  The plaintiffs also argued that ICWA and the implementing regulations violate the nondelegation doctrine and the APA.

The initial 2018 ruling by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas, held that ICWA (including its implementing regulations) is unconstitutional, and the regulations violate the APA.  Specifically, Judge O’Connor held that ICWA violates the Constitution’s guarantee of equal protection because it applies to all children eligible for membership in a Tribe, not just enrolled tribal members, and therefore operates as a race-based statute.  Judge O’Connor further held that ICWA violates the Tenth Amendment’s prohibition on the federal government issuing direct orders to states and unconstitutionally delegates Congress’s power by giving tribes the authority to change adoption placement preferences and make states abide by them.

The Fifth Circuit overturned the District Court’s decision in most respects. The Fifth Circuit found that Congress had the authority to enact the law. The majority opinion also held that ICWA’s application to all children eligible for tribal citizenship is not a race-based classification and therefore ICWA does not violate equal protection. This reaffirms that the status of “Indian child” is not an unconstitutional racial classification. However, the court was equally divided as to whether references to “other Indian families” and “Indian foster home” are an unconstitutional racial classification. Because the Court was equally divided on this holding the District Court’s ruling was upheld, but it was without precedential authority.  Further, the Court affirmed the District court’s conclusion that several of the “active efforts” required under ICWA violated the Tenth Amendment, which prohibits the federal government from imposing duties on state officials. The Court was again equally divided on whether ICWA’s placement preferences violate the Tenth Amendment.  This narrow but lengthy decision, which was over 300 pages and decided by a divided 16-judge court, creates confusing precedent for those trying to navigate the law and makes the case ripe for review by the Supreme Court.   The Fifth Circuit also addressed APA challenges to the Bureau of Indian Affairs rules implementing ICWA.

Supreme Court to Review

In early September, 2021, the United States government, tribal defendants, as well as state and private plaintiffs filed petitions asking the United States Supreme Court to review the Fifth Circuit’s April decision. In their petitions, the States and private individuals stated that ICWA places “various legal mechanisms that play favorites based on race” and that the Supreme Court should “reject the United States’ and tribes’ efforts to artificially narrow this court’s review of these mechanisms.”  While the tribes and the federal government agree with the Fifth Circuit’s decision that ICWA is generally constitutional and accords with long-standing precedent, they also believe that review of this decision is appropriate due to the Court’s narrow interpretation and decision to overturn specific provisions regarding placement preferences and processes.

This will be the Supreme Court’s first ruling on ICWA since the 2013 decision in Adoptive Couple v. Baby Girl , in which a 5-4 court ruled that a Cherokee father couldn’t rely on ICWA to block his biological child’s adoption. Since that time, the structure of the Supreme Court has changed and there is the possibility that a case like this could be another opportunity for Justice Neil Gorsuch to again serve as a swing vote on AI/AN issues and provide the decisive vote to uphold ICWA. Because ICWA has long received bi-partisan support, the government and tribes’ positions could potentially sway the politically divided Supreme Court to uphold the constitutionality of the long-standing law.  Indeed, the Fifth Circuit found it notable that the Plaintiff States (including Ohio which filed an amicus brief on their behalf) “are home to only about 1% of the total number of federally recognized Indian tribes and less than 4% of the national American Indian and Alaska Native population,” while the States which filed amicus briefs supporting ICWA “are collectively home to 94% of federally recognized Indian tribes and 69% of the national American Indian and Alaska Native population.”

ICWA and Urban Populations

AI/AN children are overrepresented in state foster care systems. According to NICWA, AI/AN children are in foster care at a rate 2.7 times greater than their proportion in the general population. This means that while AI/AN children represent 0.9% of all children in the United States, they are 2.1% of all children who are placed in foster care. Because more than 70% of AI/AN people live in urban settings, this overrepresentation undoubtably has an impact in urban AI/AN communities. Many health problems arise for AI/ANs living in urban settings because of mental and physical hardships due to the lack of family and the traditional cultural environments. Additionally, urban Indian youth are at a greater risk for serious mental health and substance abuse problems, suicide, increased gang activity, teen pregnancy, abuse, and neglect.

If the Supreme Court were to uphold the Fifth Circuit’s decision and declare portions of ICWA unconstitutional or go even further and declare the entire statute unconstitutional, urban AI/AN youth who may already feel isolated and disconnected from their cultural ties may be even more at risk if they enter the foster or adoption systems and there are no protections to keep them from being further removed from their communities and culture.

ICWA as a Vehicle to Challenge Federal Indian Law

It is also important to recognize that this case, as well as other on-going challenges to ICWA are part of a broader effort to attack the foundations of Federal Indian Law.  The recognition that being Native is a political classification is a critical underpinning of not just ICWA, but many laws that relate to housing, healthcare, education, and employment.   However, publications from the organizations supporting this lawsuit and others, including the Cato Institute and the Goldwater Institute, make clear that they view Native identity as being a matter of race, not political identity and citizenship.  If overturned, the repeal of ICWA would not only upend a law in place for more than 40 years but undercut the heart of tribal sovereignty and the federal government’s trust responsibility to Native communities.  A successful attack on ICWA would have far reaching implications on all areas of Federal Indian Law and policy.

NCUIH will continue to closely monitor updates in this case and alert UIOs and stakeholders to what a decision could mean for urban Indian communities.

7 replies
  1. Alexzandra Broyles
    Alexzandra Broyles says:

    How am I the first to comment on this? This has been here since April 2022. I am in shock at the US courts. How do we get people to be more aware of this issue, as well as others, that are, I feel, trying to break down our freedoms? Is that the point here? Am I wrong, because what I think I just read says that they are going to vote in September 2022, on upholding that tribal courts should be the courts handling these children or to tear it down and rip them away from their culture, families, tribes? I want to help. Let me know what I as an individual can do. I will be sharing this information to friends and family.

  2. Douglas Richards
    Douglas Richards says:

    Washington state has adopted out my children unlawfully, and I’m consistently learning how to pursue the proper person for litigation, does anyone know who or how to challenge these particular cases? snohomish county in Washington state has violated all of our constitutional rights

  3. Carmelita Birdhead
    Carmelita Birdhead says:

    Im in shock this is the first time to hear about this and we’ll they used my case and my brothers case and one other case to make this law so what’s the huge change now? I would like to see if I could do something to help change this please

  4. Angela Tienda
    Angela Tienda says:

    I am a friend of Carmelita Birdhead. I know exactly how this is effecting her. She has her roots deeply instilled in her. She still embodies her native language. She was a major reason for this law In the very beginning they were what made this law in effect. What reason on God’s green earth would it possibly be for it to change now?

  5. PeterDeLong
    PeterDeLong says:

    I heard about this case in the paper today and am reading more extensively on it. I’d like to understand how protections based on race is unconstitutional? I’ve worked as a social worker with Indigenous families, courts and communities and in the ICWA system and traditional system, which is a beyond broken institution. ICWA was enacted to correct the wrongs of racism and genocide against indigenous communities based on race and poverty and mainstream dominant culture of white body supremacy, returning authority for the safety of American Indian children to their tribes. White folks who want to adopt indigenous children need to understand the histories of genocide which are still prevalent today. Race is culturally and socially constructed by American history of colonial genocide which we have not yet repaired. This is another case where dominant cultural norms of “race neutrality” and false narratives of the “melting pot” has instead destroyed entire tribes and communities. Race is real. It was greeted to isolate and control; we can’t just erase this reality. We need more resources paid to tribes and tribal communities so we can avoid the systems of poverty, trauma and addiction which drive the need for system of child protection. ICWA is the gold standard because it locates family as the site for raising children rather than individual safety if individual children. Children belong in families and in community. We cannot separate culture from id entity and think we are helping. This case is another appalling legacy of American racist genocidal Magna Carta and the Christian Manifest Destiny which is really racist xenophobic ignorance masquerading as neoliberalism.

  6. Cass (she/her)
    Cass (she/her) says:

    It’s truly horrifying…well, horrifying is obviously not a strong enough word, but it’s hard to properly put into words just how vile and brutal this all is. The fact that it took so long for multiple news sources to even cover it (or easier to find at least) says a lot in itself, though.

  7. Michele Plummer
    Michele Plummer says:

    I was one of the last Native children adopted out of my tribe in 1975, just a few years before ICWA was enacted. My name was changed and my adoption was never spoke of. I mean, I suffered some childhood trauma between birth and 2 years old. My parents were both alcoholics, I get that I was not in a stable home. I was shuffled around to 12 different places before my 2nd birthday when my birth father left me to be babysat by his girlfriend’s brother who had 4 boys and would “love to have a little girl for a few days”. I was never picked back up which eventually led to my, what would become my adopted parents, to seek guidance about how they could care for my health needs and general needs – I was placed into foster care with them and went through 2 years of court hearings before a judge decided I needed a permanent and stable home. The problem was that it was a closed adoption which meant my biological family could not find me after that. I didn’t even know I had an older sister and brother until I was 18 years old. I grew up knowing nothing about my culture, my biological family, or my tribe. I just knew I didn’t fit in but I didn’t know why. Long story short (and believe me I have a long story), being adopted caused my irreversible emotional, mental, and spiritual trauma. My adopted family loved me very much; however, they didn’t know what deep-rooted trauma I had, nor how important it was to have a connection to my roots. I have no culture to share with my children or grandchildren, none of the language, regalia making, stories about our people…the very things that provide healing and are at risk of being lost forever. As I sit here at my desk where I have been working for my tribe for almost 12 years, I yearn to have my personal story told to the powers that be – that doing away with ICWA would essentially be doing away with the very thing that has saved my own children from being adopted out before I had the opportunity to heal from some of my own childhood trauma so I could be a better mom. I have been able to break a cycle of addiction and keep my children with me. I was released from prison in 2011 and since then I have gotten my Bachelor Degree in Management & Organizational Leadership, my MBA, my Master of Jurisprudence in Indian Law, and I am presently a Doctoral student in pursuit of my PhD in Human and Organizational Development. If anyone knows an avenue where I can help make a difference in this matter, or in any capacity, that is what my life passion is. To make a difference, a big one.


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