On November 9, 2022, the Supreme Court of the United States held oral argument in Haaland v. Brackeen, a case challenging the constitutionality of the Indian Child Welfare Act of 1978 (ICWA). The questions presented to the Court in Brackeen are: (1) Whether various provisions of ICWA violate the anticommandeering doctrine of the Tenth Amendment; (2) Whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for “other Indian families,” and for “Indian foster home[s];” (3) Whether the default placement preferences for Indian homes in adoption or foster care cases are rationally related to legitimate governmental interests and therefore consistent with equal protection. The Supreme Court’s decision in Brackeen will have far-reaching implications on all areas of Federal Indian Law and policy and the National Council of Urban Indian Health (NCUIH) continues to advocate for the protection of ICWA to safeguard American Indian/Alaska Native (AI/AN) children and families.

Summary of Oral Argument

Oral argument for Brackeen lasted over three hours and focused heavily on the scope of Congress’s constitutional authority to legislate on behalf of AI/ANs, the equal protection limitations on that power, and whether the requirements imposed on states by the ICWA, particularly the “active efforts” requirement, violates the anticommandeering doctrine. Oral argument began with the parties challenging ICWA, referred to as “plaintiffs.” Solicitor General Judd Stone argued on behalf of the state of Texas, and Matthew McGill, a partner at Gibson, Dunn & Crutcher, argued on behalf of the potential adoptive families. The plaintiffs’ arguments centered on the assertion that ICWA deprives Indian children and non-Indian prospective parents of the “best interest of the child” standard in child welfare proceedings in violation of the Equal Protection Clause. The parties defending ICWA, referred to as “defendants,” argued second. Deputy Solicitor General Edwin Kneeler argued on behalf of the federal defendants and Ian H. Gershengorn, a partner at Jenner & Block, LLC , argued on behalf of the intervening Tribes (the Cherokee Nation, Oneida Nation, Quinault Nation, and Morongo Band of Mission Indians).  The defendant’ arguments centered on the fact that Congress has broad power to legislate in Tribal affairs, and this power is limited only by other constitutional provisions or by the test set by Supreme Court precedent in Morton v. Mancari, 417 U.S. 535 (1974), which requires congressional action to be rationally related to the fulfillment of Congress’ unique obligations to Indians.

Background on Haaland v. Brackeen

Congress enacted the ICWA in 1978 to re-establish Tribal authority over the adoption of AI/AN children. ICWA is a procedural safeguard to “protect the best interests of Indian children and to promote the stability and security of Indian Tribes and families.” 25 U.S.C. § 1902. In Brackeen, Texas, Indiana, Louisiana, and individual plaintiffs (plaintiffs) sued the federal government in the U.S. District Court for the Northern District of Texas, 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 District Court ruled in favor of the plaintiffs, finding that the 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.  The District Court 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. On appeal, the Fifth Circuit reversed the District Court’s opinion in most respects. In a fractured ruling, the Fifth Circuit sitting en banc upheld portions of the District Court’s opinion and reversed other portions.

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 decision. The U.S. Supreme Court agreed to review the Fifth Circuit’s decision in Brackeen v. Haaland on February 28, 2022, and held oral argument on November 9, 2022.

NCUIH Advocacy

On August 19, 2022, NCUIH and five urban Indian organizations (UIOs) (Nebraska Urban Indian Health Coalition, Inc., Sacramento Native American Health Center, Fresno American Indian Health Project, All Nations Health Center, and Oklahoma City Indian Clinic) signed on to the National Indigenous Women’s Resource Center’s (NIWRC) amicus brief to the Supreme Court in support of the constitutionality of ICWA in the  Haaland v. Brackeen case. NCUIH worked directly with NIWRC to engage with UIOs to ensure that the submitted brief was inclusive of urban AI/ANs. On September 7, NCUIH submitted written comments to the Bureau of Indian Affairs (BIA) and the Administration for Children and Families (ACF) on the BIA and ACF’s efforts to promote the consistent application of ICWA) and protect children, families, and Tribes.

NCUIH previously provided an in-depth analysis on the impact of ICWA and will continue to monitor ongoing developments.

Next Steps

The Supreme Court will hand down a decision by the end of the 2022 term on July 1, 2023. Due to the complex nature of the case, a decision is not expected until the Spring. The Supreme Court’s decision in Brackeen will have far-reaching implications on all areas of Federal Indian Law and policy. The recognition that the AI/AN classification is political classification rather than racial is a critical underpinning of not just ICWA, but many laws that relate to housing, healthcare, education, and employment. This political classification goes back to the 19^th Century and has been upheld by Courts at multiple levels. Acknowledging the importance of tribal citizenship, AI/ANs are classified by this citizenship, not by their race.  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.

On August 1, 2022, the National Council of Urban Indian Health (NCUIH) submitted written comments to the Department of Health and Human Services (HHS) Office of the Assistant Secretary for Health (OASH) in response to its request for information (RFI) regarding the HHS Initiative to Strengthen Primary Care. NCUIH supports HHS’ efforts to promote health equity and reduce barriers to care for underserved populations, including American Indians/Alaska Natives (AI/ANs). AI/ANs, including those in urban areas, face significant health disparities attributable in part to a lack of access to high-quality, culturally competent care. NCUIH strongly supports the purpose and scope of the Initiative in establishing a federal foundation that supports advancement towards the stated “goal state” of the practice of primary health care.

NCUIH made the following specific recommendations to HHS OASH:

• Support UIO models for health care delivery already in place at UIOs:
  • NCUIH recommended that HHS address the need for continued and expanded support for UIOs.
  • UIOs are a fundamental and inseverable component of the IHS, Tribal Health Program, and UIO (I/T/U) system. UIOs “are an important support to Native families and individuals seeking to maintain their values and ties with each other and with their culture,” which exist to provide “a wide range of culturally sensitive programs to a diverse clientele.”
• Address barriers to the delivery of care at UIOs like insufficient funding and resources:
  • Presently, the ability of UIOs to expand upon their current offerings is severely limited by the chronic underfunding of the Indian health system generally, and UIOs in particular. In 2018, the average health care spending was $11,172 per person nationally, yet UIOs only received $672 per AI/AN patient.
  • NCUIH requested that HHS engage with other federal agencies and Congress to advocate for advance appropriations for the IHS. In addition to a lack of funding, UIOs also face significant barriers to providing primary care to AI/ANs in urban areas due to uncertainty over the consistency and timing of federal funding.
  • NCUIH requested that HHS consider supporting UIO recruitment efforts and increasing funding for staff at UIO facilities. UIOs have long faced understaffing issues that reduce the number of patients they can serve and the quality of service at each facility.
• Establish an Urban Confer Policy
  • NCUIH recommended that HHS establish an Urban Confer policy to seek UIO input to guide HHS actions to strengthen primary health care. An Urban Confer is an established mechanism for dialogue between federal agencies and UIOs. Urban Confers are responses to decades of deliberate federal efforts (i.e., forced assimilation, termination, relocation) that resulted in 70 percent of AI/AN people living outside of Tribal jurisdictions, thus making Urban Confers integral to addressing the care needs of most AI/AN persons.
  • The development of an HHS Urban Confer policy will help coordinate and integrate care between UIOs and HHS, including the relevant agencies and Departments within HHS that have a trust responsibility to provide care to AI/ANs no matter where they live.
  • An urban confer policy will also help HHS fulfill the United States’ national policy, set forth by Congress, “to ensure maximum Indian participation in the direction of health care services so as to render the persons administering such services and the services themselves more responsive to the needs and desires of Indian communities.”

Background on the HHS Initiative to Strengthen Primary Care

Access to high-quality primary health care has been shown to improve health equity and health outcomes, however, the United States’ primary health care foundation is weakening and in need of support: primary health care is under-resourced; the workforce is shrinking; workforce well-being is in peril; and many practices face reimbursement challenges that may result in financial instability. In response to this, OASH launched the Initiative in September 2021 to develop a federal foundation for the provision of primary health care for all that supports improved health outcomes and advanced health equity.  The goals of the Initiative are to:

• Support health and wellness through sustained partnerships with patients, families/caregivers, and their communities;
• Equitably provide first contact access to all, as well as whole person, comprehensive care over time, using interprofessional teams; and
• Coordinate and integrate care across systems, including other health care providers, public health, and community-based health promotion and social service organizations.

The first task of the Initiative is to develop an initial HHS plan for strengthening primary health care that will delineate specific actions that HHS agencies and offices may take to achieve the aims, within the current legislation and funding environment. The plan will also include actions that establish an infrastructure in HHS to continue its focus on strengthening primary health, develop subsequent HHS plans that build on the initial plan, and monitor progress and impact. The purpose of OASH’s June 15 RFI was to provide OASH with diverse perspectives, experiences, and knowledge that may inform the development of the initial plan for HHS, as well as future steps for the Initiative.

NCUIH remains committed to advocating for the health rights of urban AI/ANs and continues to respond to requests for information when applicable.

On September 7, the National Council of Urban Indian Health(NCUIH) submitted written comments to the Bureau of Indian Affairs (BIA) and the Administration for Children and Families (ACF) on the BIA and ACF’s efforts to promote the consistent application of the Indian Child Welfare Act (ICWA) and protect children, families, and Tribes.

In the submitted comments, NCUIH made the following specific comments, requests, and recommendations to ACF and BIA in response to the July 8, 2022 correspondence:

• Ensure that urban child welfare and judicial systems are aware of and able to implement ICWA appropriately
  • According to the National Indian Child Welfare Association (NICWA), American Indian/Alaska Native(AI/AN) children continue to be overrepresented in the state foster care system at a rate 7 times higher than their non-Native peers. Because more than 70% of AI/AN people live in urban settings, this overrepresentation undoubtedly includes AI/AN children living in urban areas.
  • To properly implement ICWA, state courts must determine whether a child is an “Indian Child” for the purposes of ICWA as a threshold determination in the proceedings. There are states with experience in the application of ICWA and making applicability determinations. However, some state courts and child protective agencies may not be aware of this requirement or may make incorrect assumptions about a child’s “Indian child” status based on physical appearance or distance from their Tribe. This process needs to be standardized across all states to ensure the safety of these children
  • An AI/AN child’s physical location should not affect whether they receive ICWA’s protections. Specifically, NCUIH requests that ACF and BIA provide technical assistance on ICWA to state social service and child welfare agencies and courts located in urban areas.
• Actively inform urban child welfare and judicial systems about urban Indian organizations (UIOs) as a potential resource for ICWA proceedings
  • NCUIH recommended that, as part of their efforts to strengthen and implement ICWA, ACF and BIA actively inform state child welfare and judicial systems located in urban areas about UIOs as a potential ICWA resource.
  • While UIOs are healthcare organizations, they often provide culturally competent services that state child welfare services and courts can refer parents to in accordance with ICWA’s “active efforts” requirements. For example, various UIOs provide the following services: family support services, parenting classes and groups, gender-based violence programs, and breastfeeding support.
  • Because UIOs are AI/AN organizations, they may be able to provide useful contacts or other information when a state child welfare agency throughout the child welfare process, including during the initial “Indian child” determination phase.
  • The UIO connection may be particularly useful in areas, such as Chicago, where there is an active UIO but no federally recognized Tribes nearby, and urban systems may not know where to start with the ICWA process.

Background

Congress enacted ICWA in 1978 to re-establish tribal authority over the adoption of Native American children (25 U.S.C. § 1903.) 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:

1. Recognition of Tribal jurisdiction over decisions for their Indian children;
2. Establishment of minimum Federal standards for the removal of Indian children from their families;
3. Establishment of preferences for placement of Indian children with extended family or other Tribal families; and
4. Institution of protections to ensure that birth parents’ voluntary relinquishments of their children are truly voluntary.

According to 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.”

Next Steps

NCUIH will continue to advocate for  the appropriate application of ICWA to all welfare proceedings involving AI/AN children, regardless of whether the child is located in an urban or rural community.