The Necessity of the Indian Child Welfare Act

The Pine Ridge Indian Reservation, in South Dakota

The Pine Ridge Indian Reservation, in South Dakota Shutterstock

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COMMENTARY | A case now before the Fifth Circuit threatens to upend the laws that enable Native self-governance.

Congress today has substantial and sweeping powers over Native nations and Native people, including the authority to abolish tribes and tribal reservations, and to expand or restrict tribal authority. These powers come from a series of Supreme Court decisions in the late 1800s and early 1900s that were based on racist views about American Indians—that Congress needed virtually unlimited authority over American Indian affairs because Natives were not equipped to govern themselves. The Court reasoned that Natives’ “weakness and helplessness” gave the federal government “broad domain” over them; later cases pointed to Natives’ “condition of tutelage or dependency.” Those decisions gave Congress more power when it comes to Native affairs than it has when it comes to taxing or spending or regulating interstate commerce.

But over time, these cases have come to produce different results. These same decisions have empowered Congress, in recent years, to protect Native families from various new and old forms of discrimination, imperialism, and white supremacy. The U.S. Court of Appeals for the Fifth Circuit is poised to decide whether that will remain so. It will hear the case later today.

The case centers on the Indian Child Welfare Act (ICWA), which was designed to protect American Indian communities against state-led efforts to break up Native families. The challengers in the case—several Republican-led states and non-Native families seeking to adopt Native children—are attempting to invalidate ICWA’s restrictions on breaking up Native families and on non-Native families adopting Native children. In doing so, they risk undoing a set of doctrines that has facilitated tribes’ ability to govern themselves and prosecute individuals who victimize Native people.

ICWA was passed in 1978, in an effort to put an end to the long history of states forcibly placing Native children with white families or sending Native children to abusive boarding schools. Following the passage of ICWA, states were required to err on the side of placing Native children with Native families in cases of adoption and to follow a series of procedural rules in cases where authorities feel there is no choice but to break up a Native family.

In 2017, Texas filed Brackeen v. Bernhardt, challenging the federal government’s regulation of states’ treatment of Native children in foster care or up for adoption. Texas was joined by three non-Native families, including the Brackeens, who were seeking to adopt Native children. (Some of the Native children had Native relatives who sought custody.)

In Brackeen, Texas has mounted nothing less than a frontal attack on the entire corpus of federal law that governs Indian affairs today.

The challengers in Brackeen are arguing that the federal government’s authority over Indian affairs ought to be much more limited than the expansive powers that the Supreme Court granted the federal government. They argue that the Constitution allows Congress to regulate only commerce, such as barter and trade, with tribes, and not areas of domestic relations.

But this is not the case. The Constitution and Indian tribes themselves gave Congress the authority to regulate almost anything that touches on Native American affairs, including family law. The Constitution recognizes Indian tribes as sovereigns, alongside states and foreign nations. The federal-tribal relationship originated under the international-law principle of the “duty of protection,” in which a superior sovereign agrees to take an inferior sovereign under its wing. Tragically, the United States abused this power, overextending its power to undermine tribal governance and dispossess Indians and tribes of their lands, resources, and cultures.

Tribes, of course, fought the federal government in court, but lost in those late-19th- and early-20th-century cases that confirmed the United States’ powers over tribes. But those losses are now what allows Congress to protect Native communities from discrimination. One of the ways that states and white communities sought to eradicate Native communities was by taking away their children; ICWA’s family-law rules provide some protection against those practices.

The challengers are also arguing that ICWA, which applies to children who are descendants of members of Native tribes, impermissibly discriminates on the basis of race. Laws that single out particular racial groups are subject to the most rigorous form of judicial scrutiny; therefore, if courts view ICWA as involving a racial distinction, then ICWA may very well be unconstitutional.

But numerous previous Supreme Court decisions have held that federal laws that give preferences to members of Native American tribes create political distinctions, rather than racial ones. (Tribes are, after all, political nations.) The irony is that while laws that single out American Indians may be, and historically have been, used to discriminate against them, they may also be used to protect American Indians from discrimination. If Congress cannot single out tribal members, then it cannot rectify prior discrimination against Native communities. The challengers to ICWA want a world in which the judiciary defers to Congress on laws that impose burdens on Indians and tribes but subjects laws benefiting Indians and tribes to higher scrutiny.

The challengers have also offered up an argument that does not concern American Indian affairs as such. Texas and three other states maintain that ICWA is unconstitutional because it “commandeers”—i.e., forces—the states to carry out federal law. At least 22 states disagreed by signing onto briefs supporting ICWA. While this argument would not unsettle American Indian affairs, it would drastically reshape the law of American federalism and the relationship between states and the federal government.

The reason for that is that ICWA is, in form, a common type of federal regulation, in that it supplies a federal standard against breaking up Native American families for the states to use in a given area (family law). Congress also regulates drug licensing, food safety, environmental protections, and myriad other areas in exactly the same way. If ICWA is unconstitutional, then Congress could not regulate any of these other areas, in which federal law provides a substantive standard that states are bound to follow.

Equally important is that ICWA applies in state courts. It is a core feature of American federalism that while federal law may not commandeer state legislatures or state executives, there is nothing unconstitutional about forcing state courts to apply federal law. Indeed, the supremacy clause of the Constitution obligates state courts to follow federal law. Nor does it matter that ICWA imposes some costs and burdens on the states; so do myriad other federal laws, such as statutes that require states to pay a minimum wage, which the Supreme Court has upheld. Imposing costs on the states is something that federal law just does.

Brackeen is nominally a challenge to ICWA. But the plaintiffs’ arguments in the case represent a broad-scale effort to reshape Native governance and American federalism.

Leah Litman is an assistant professor of law at the University of Michigan Law School. Matthew L.M. Fletcher is professor of law at Michigan State University College of Law and director of the Indigenous Law and Policy Center.

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