Brackeen v. Haaland

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On February 28, 2022, the Supreme Court announced that it granted certiorari to consider the Fifth Circuit Court of Appeals’ ruling in Brackeen v. Haaland. This case concerns the constitutionality of the Indian Child Welfare Act (ICWA). The Fifth Circuit, sitting en banc, determined that several provisions of ICWA are unconstitutional.

The equal protection arguments are the most troublesome during the challenges to ICWA’s constitutionality and present concerns for NIWRC and NIWRC’s work. On December 8, 2021, the individual plaintiffs (i.e., the adoptive parents) filed a brief before the United States Supreme Court, asserting that:

ICWA operates as a unified scheme that places “Indian child[ren]” in a disfavored position, depriving them of a placement decision based on their best interests, and instead requiring placements based on the child’s “biolog[y].” 25 U.S.C. § 1903(4). And it categorically places non-Indian adoptive parents such as Individual Respondents last in line to adopt an Indian child . . . . As a result, ICWA disadvantages vulnerable children because of their ancestry—even if they have no other connection to the tribe—making it more difficult for those children to find permanent, loving homes . . . . This Court has already noted the “equal protection concerns” that ICWA raises. Adoptive Couple, 570 U.S. at 656 (declining to adopt an interpretation that would allow a biological parent to “play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests").

These equal protection arguments are concerning because, if upheld by the Supreme Court, they would undermine the ability of Tribal Nations to exercise their inherent sovereignty to protect their children. And of equal importance—but of specific concern to the NIWRC—if upheld by the Court, these arguments threaten to undermine the constitutionality of the Violence Against Women Act’s Section 804. If “Indian” is declared a race-based classification, then all federal statutes relying on the word “Indian” to refer to a tribal citizen will trigger strict scrutiny. This constitutional test is nearly impossible to pass. The irony of this, of course, is that if “Indian” is declared to be an impermissible race-based classification, then Congress would be left unable to restore the tribal jurisdiction that the Court erased in Oliphant when the Court held that Tribes could no longer exercise jurisdiction over non-Indians. 

NIWRC’s amicus brief, filed in August 2022,  educates the Court on how and why the Framers of the Fourteenth Amendment never intended for equal protection to restrict Congress’ ability to effectuate the federal government’s trust duty and responsibility to Tribal Nations and their citizens, and finally, how a decision declaring “Indian” to be a race-based classification would significantly undermine safety for Native women and children. In addition to these legal arguments, the brief also focuses on how the placement of Native children in state-run foster homes leaves them vulnerable to other crimes, such as sex trafficking, and the high rates of abuse Native children face in state-run foster homes. Overall, the NIWRC’s amicus brief contributes a powerful and essential voice supporting the constitutionality of ICWA.