Tag Archive for: ICWA

Supreme Court Held Oral Argument on Case Challenging the Indian Child Welfare Act

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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 19th 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.

NCUIH Presents at DePaul Law School’s Diversity Week to Discuss Challenges to the Indian Child Welfare Act

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On November 2, 2022, the National Council of Urban Indian Health’s (NCUIH) Federal Relations Manager, Alexandra Payan, presented at Chicago’s DePaul Law School Student Bar Association’s Diversity Week to discuss the Indian Child Welfare Act (ICWA) and the upcoming Supreme Court case, Haaland v. Brackeen. Alexandra presented alongside Ryann Unabia (Turtle Mountain Band of Chippewa), an Indian Child Welfare Specialist at the Illinois Department of Children and Family Services. In her presentation, Alexandra highlighted the critical importance of ICWA in preserving Tribal Sovereignty, Tribal Identity, and improving the overall health of American Indian/Alaska Native (AI/AN) children. She also provided an analysis of Haaland v. Brackeen and the possible implications if the Supreme Court were to hold ICWA unconstitutional. Oral arguments at the Supreme Court are scheduled for November 9, 2022. NCUIH has and will continue to voice support for ICWA.

Background and Advocacy

ICWA and its Importance to AI/ANs

ICWA represents the gold standard in child welfare proceedings, strengthening and preserving AI/AN family structure and culture. When it was established in 1978, studies showed that between 25% and 35% of all Native children were removed from their homes 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 ensures that the previously forced removal of AI/AN children from their homes and their placement into white families will not be repeated.

Today, Native children continue to be overrepresented in state foster care systems at a rate 2.7 times higher than their non-Native peers. 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 undoubtedly includes AI/AN children living in urban areas. According to the Indian Health Service (IHS), Native youth living off-reservation often face a higher risk of health problems, including mental health and substance abuse, suicide, gang activity, teen pregnancy, abuse, and neglect. Additionally, IHS found that urban Indian populations experience the same health problems as the general Indian population, but these problems are exacerbated by a lack of access to family and traditional cultural environments. Challenges to ICWA threaten to place urban Native youth at even greater risk if they enter foster or adoption systems that do not offer protections to keep them from being further removed from their communities and culture.

NCUIH previously provided an in-depth analysis on the impact of ICWA. NCUIH is hosting a Supreme Court Listening Event for the oral argument on November 9, 2022 to support the National Indigenous Women’s Resource Center’s (NIWRC) event gathering in front of the Supreme Court in support of ICWA.

Legal Proceedings and Opposition to ICWA

In Brackeen, the states of Texas, Indiana, 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 Administrative Procedures Act (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 Court of Appeals overturned the District Court’s decision in most respects. The Court 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 a 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.

On February 28, 2022 the U.S. Supreme Court agreed to review the Fifth Circuit’s decision in Brackeen v. Haaland. The challengers and their amici argue that American Indian/Alaska Native is a racial classification rather than a political classification, making ICWA constitutionally suspect under the Equal Protection Clause. The challengers and their amici further argue that ICWA violates several constitutional provisions including anti-commandeering and nondelegation.

On May 26, 2022, the Court received amicus briefs from supporters of the ICWA challengers highlighting their arguments. On August 19, 2022, the next round of amicus briefs in support of ICWA and Tribal intervenors were due, which was submitted by NIWRC and signed on by NCUIH, and argues that ICWA constitutes a critical safeguard that protects Indian women and children from abuse and declaring Indian to be a racial classification subject to strict scrutiny would impede Congress’ trust duty and responsibility to address violence against Native women and children. Oral argument is scheduled for November 9, 2022 and the Supreme Court will release its decision by June 30, 2023.

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 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 19th 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. 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 Submits Comment on Consistent Application of the Indian Child Welfare Act

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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.

 

 

NCUIH Signs on to Amicus Brief in Support of the Indian Child Welfare Act

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On August 19, 2022, the National Council of Urban Indian Health (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 the Indian Child Welfare Act (ICWA) in the Brackeen v. Haaland case. NCUIH worked directly with NIWRC to engage with UIOs to ensure that the submitted brief was inclusive of urban American Indians/Alaska Natives (AI/ANs).

The Amicus Brief Argues:

  • ICWA constitutes a critical safeguard that protects Indian women and children from abuse.
    • Indian children are especially susceptible to abuse and trafficking when placed in state-run adoptive and foster homes.
  • Declaring Indian to be a racial classification subject to strict scrutiny would impede Congress’ Trust duty and responsibility to address violence against Native women and children.
    • The Supreme Court used a political, not a racial, classification to eliminate tribal criminal jurisdiction over non-Indians in its 1981 decision in Oliphant v. Suquamish Indian Tribe (Oliphant).
    • Following Oliphant, Indian women and children face high rates of non-Indian violence in the United States.
    • The Violence Against Women Act (VAWA) 2013 utilized the same political classification as ICWA and
    • VAWA 2022 utilized the same political classifications as ICWA and Oliphant.
  • The transformation of Indian into a racial classification would significantly impede Congress’s ability to effectuate its Trust duty and responsibility to protect and safeguard the lives of Native Women and Children

Background and Advocacy

Legal Proceedings and Opposition to ICWA

In Brackeen, Texas, Indiana, 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 Court of Appeals overturned the District Court’s decision in most respects. The Court 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 a 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.

On February 28, 2022 the U.S. Supreme Court agreed to review the Fifth Circuit’s decision in Brackeen v. Haaland. The challengers and their amici argue that American Indian/Alaska Native is a racial classification rather than a political classification, making ICWA constitutionally suspect under the Equal Protection Clause. The challengers and their amici further argue that ICWA violates several constitutional provisions including anti-commandeering and nondelegation.

  • On May 26, 2022, the Court received amicus briefsfrom supporters of the ICWA challengers highlighting their arguments.
  • On August 19, 2022, the next round of amicus briefs in support of ICWA and Tribal intervenors were due.
  • Oral argument is scheduled for November 9, 2023.
  • The Supreme Court will release its decision by June 30, 2023.

ICWA and its Importance to AI/ANs

It was critical that NCUIH signed onto NIWRC’s brief because of the threat posed by the overturning of ICWA. ICWA represents the gold standard in child welfare proceedings, strengthening and preserving AI/AN family structure and culture. When it was established in 1978, studies showed that between 25% and 35% of all Native children were removed from their homes 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 ensures that the previously forced removal of AI/AN children from their homes and their placement into white families will not be repeated.

Today, Native children continue to be overrepresented in state foster care systems at a rate 2.7 times higher than their non-Native peers. 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 undoubtedly includes AI/AN children living in urban areas. According to the Indian Health Service (IHS), Native youth living off-reservation often face a higher risk of health problems, including mental health and substance abuse, suicide, gang activity, teen pregnancy, abuse, and neglect. Additionally, IHS found that urban Indian populations experience the same health problems as the general Indian population, but these problems are exacerbated by a lack of access to family and traditional cultural environments.  Challenges to ICWA threaten to place urban Native youth at even greater risk if they enter foster or adoption systems that do not offer protections to keep them from being further removed from their communities and culture.

NCUIH previously provided an in-depth analysis on the impact of ICWA. We will continue to monitor ongoing developments as Brackeen v. Haaland proceeds to oral argument and provide updates on how the case impacts urban Indians.

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 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 19th 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. 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.

Next Steps

  • Oral argument for Brackeen is scheduled for November 9, 2022.
  • The Supreme Court will issue a decision by June 30, 2023.
  • 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. NCUIH will track the upcoming Supreme Court term for updates on Brackeen.

Challenge to Indian Child Welfare Act Advances at Supreme Court

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The Supreme Court is preparing to hear a constitutional challenge to the Indian Child Welfare Act (ICWA) that consolidates four petitions to review the Fifth Circuit’s April 2021 en banc decision in Brackeen v. Haaland. In this decision, the United States Court of Appeals for the Fifth Circuit upheld the overall constitutionality of ICWA. However, it overturned certain ICWA processes and provisions that concern placement preferences of Native children in Indian homes. On May 26, 2022, the Court received amicus briefs from supporters of the ICWA challengers. The challengers and their amici argue that ICWA violates several constitutional provisions including equal protection, anticommandeering, and nondelegation. The next round of amicus briefs in support of ICWA and Tribal intervenors are due by August 12, 2022, and oral arguments are expected to begin after the Supreme Court term starts in October.

Background

ICWA represents the gold standard in child welfare proceedings, strengthening and preserving American Indian and Alaska Native (AI/AN) family structure and culture. When it was established in 1978, studies showed that between 25% and 35% of all Native children were removed from their homes 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 re-established tribal authority to safeguard against such practices by requiring that Native children be placed with extended family members, other tribal members, or other Native families prior to placement in non-Indian homes.

Today, Native children continue to be overrepresented in state foster care systems at a rate 2.7 times higher than their non-Native peers. Because more than 70% of AI/AN people live in urban settings, this overrepresentation undoubtedly has an impact in urban AI/AN communities. According to the Indian Health Service (IHS), Native youth living off-reservation often face a higher risk of health problems, including mental health and substance abuse, suicide, gang activity, teen pregnancy, abuse, and neglect. Additionally, IHS found that urban Indian populations experience the same health problems as the general Indian population, but these problems are exacerbated by a lack of access to family and traditional cultural environments.  Challenges to ICWA threaten to place urban Native youth at even greater risk if they enter foster or adoption systems that do not offer protections to keep them from being further removed from their communities and culture.

NCUIH previously provided an in-depth analysis on the impact of ICWA. We will continue to monitor ongoing developments as Brackeen v. Haaland proceeds to oral argument, and to provide updates on how the case impacts urban Indian communities.

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

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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.

HHS Publishes Revised AFCARS Final Rule Streamlining ICWA-related Reporting

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On May 12, 2020 the Department of Health and Human Services (HHS) published a final rule with revisions to the Adoption and Foster Care Analysis Reporting System (AFCARS) regulations. The streamlined final rule will lessen the AFCARS data-reporting requirements for Title IV-E agencies.

The expanded 2016 AFCARS regulations covered Indian Child Welfare Act of 1978 (ICWA)-related data elements to be reported to HHS. The streamlined rule asked Title IV-E agencies to report if a child is an Indian child as defined by ICWA, if the child is a tribal member, of which tribe a child is a member of, and if the ICWA applies to the child, was the tribe sent legal notice. No other ICWA-related data elements are to be reported.

The National Council of Urban Indian Health submitted comments on the potential rule change, as did Tribes and tribal organizations. Commenters with tribal interests did not support reduction in the data elements of required reporting and requested all ICWA-related data elements be reinstated from the 2016 Final Rule as they are needed to assess ICWA compliance. The commenters also claimed the data helps to address disparities and analyze outcomes for Indian children and families.

The Administration for Children and Families (ACF) explained the reduction in the ICWA-related data elements was recommended due to the low population of American Indian/ Alaska Native children in foster care. ACF further explained that DOI is the lead agency for all ICWA compliance and the 2016 ICWA-related data elements place HHS in a position of interpreting ICWA requirements without having the authority to do so. The only authority they have is over the collection data elements related to the Title IV-E programs.

The rule will go into effect on July 13, 2020.

Fifth Circuit Hears Oral Argument on ICWA Case

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Last week, the U.S. Court of Appeals for the Fifth Circuit heard oral argument on the constitutionality of the Indian Child Welfare Act (ICWA).  As previously reported, the court agreed to rehear the case, Brackeen v. Bernhardt, en banc.  Of the sixteen judges hearing the case, six asked the majority of the questions.  Attorneys from the Department of Justice, Navajo Nation, and an attorney representing Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation argued in defense of ICWA.  The states challenging ICWA were represented by the Texas Solicitor General.  An attorney representing individual plaintiffs also presented argument challenging ICWA.  As a reminder, the case centers around whether ICWA is unconstitutional on several bases — including whether it violates the Equal Protection Clause as a race-based statute.  A three-judge panel had previously held ICWA constitutional before the entire Fifth Circuit agreed to rehear the case en banc.

An audio recording of the oral argument is available here.

NCUIH will continue to monitor the case and provide updates as they become available.  Previously, in December 2019, NCUIH joined nearly 400 Tribes and Indian organizations in an amicus curiae brief filed in support of the Indian Child Welfare Act (ICWA).

Federal Appeals Court that Affirmed ICWA Rules ACA Mandate Unconstitutional; Lower Court Will Reconsider the Entire Law’s Validity

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Today, the U.S. Court of Appeals for the Fifth Circuit ruled that the Patient Protect and Affordable Care Act (Affordable Care Act / Obamacare) individual mandate is unconstitutional. The appeals court narrowed a broader ruling from a Texas federal district court that found the entire Affordable Care Act was unconstitutional.  The appeals court did not invalidate the entire law, but instead sent it down to a lower court to reconsider whether any of the law can survive.

Whenever part of a statute is ruled unconstitutional, a court must then determine how much of the statute to invalidate. This is known as the severability doctrine. The U.S. Supreme Court test for severability is whether other provisions can exist with independent legal effect. Courts typically avoid striking entire laws if they can stand without the provisions that are found invalid. Many legal scholars have pointed to Congress’s decision to zero out just the mandate penalty in 2017 as proof that lawmakers meant for the rest of the ACA to stand.

This challenge to Obamacare was brought by more than a dozen Republican-led states that argued the law is no longer constitutional after Congress removed the penalty for not purchasing insurance in the 2017. The majority of the appeals court panel was made up of Republican-appointed judges, although they said the entire law did not need to fall. The other judge on the panel (Democratic-appointed) disagreed with the majority’s decision in a lengthy dissent.

In August, this same appeals court published its decision in Brackeen v. Bernhard, which was a challenge to the Indian Child Welfare Act (ICWA).  The appeals court affirmed that ICWA is constitutional recognizing the unique political status of tribes and American Indians and Alaska Natives. This was a big win for Indian Country.

The future of the law remains uncertain. It is highly likely to be challenged to the Supreme Court. This development could renew pressure on Obamacare opponents to explain how they plan to preserve the law’s insurance protections, after failing to agree on a replacement for years. If the entire Affordable Care Act is found invalid, it will jeopardize health care coverage for the roughly 20 million Americans covered through the law and its preexisting conditions protections.

NCUIH Joins Coalition in Amicus Curiae Brief in Support of the Indian Child Welfare Act

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On December 13, NCUIH joined nearly 400 Tribes and Indian organizations in an amicus curiae brief filed in support of the Indian Child Welfare Act (ICWA). The brief, which was filed in the U.S. Court of Appeals for the Fifth Circuit, largely mirrors the brief filed in the lawsuit last year. As a reminder, a three-judge panel of the Fifth Circuit issued an opinion in August finding ICWA constitutional in part because it is not a race-based law.  However, the judges granted an order to rehear the case en banc — before the entire 17-judge panel. Defendants in the case, the federal government and Intervenor-Tribes, filed their supplemental briefs for the en banc stage on Friday, December 6.

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