Professor Lewerenz quoted as an expert in commentary about the Brackeen v. Haaland case awaiting a decision from the U.S. Supreme Court
The fate of the Indian Child Welfare Act
When it comes to children, should tribes govern themselves?
Not long after Jennifer and Chad Brackeen felt called by God to become foster parents, they got a call of another kind: this one from Texas’s Child Protective Services, saying they had a baby boy — known in legal documents as A.L.M. — who needed a home.
Because A.L.M.’s mother was a member of the Navajo Nation, the caseworker warned the Brackeens, who are white, that the child would only be with them for a few months while the agency found a Native home for him. But when the nine-month-old boy arrived “we fell in love with him right away,” Jennifer Brackeen would later say.
A.L.M., who joined the Brackeens’ two biological children in 2016, was quickly knitted into the fabric of the family’s life, celebrating birthdays and holidays together, seeing Christmas lights, taking walks in nature, playing at the beach. In the meantime, the boy’s birth mother and father voluntarily terminated their parental rights.
A year on, A.L.M. had spent more than half his life with the Brackeens and the couple decided to try to adopt the little boy. Standing in their way was the Indian Child Welfare Act — known as ICWA — a 1978 law that endeavors to keep Native American children with their families and, if not with their families, at least with their tribes. The first judge denied the Brackeens’ request, but the couple pushed forward, eventually winning their case in federal court.
The removal of Native American children from their communities created an existential threat to tribes’ ability to continue to grow and govern themselves.
In 2017, the Brackeens joined a lawsuit taking the federal legislation on. As the case, now known as Brackeen v. Haaland, made its way through the judicial system, the Brackeens became foster parents to a second Native American child, the boy’s half sister, Y.R.J. And last year, their challenge to ICWA landed, finally, in the Supreme Court, where arguments were heard in November.
The Brackeens and their attorneys are challenging ICWA on multiple grounds, claiming that it constitutes racial discrimination and, thus, a violation of the equal protection clause. They also say that because ICWA is a federal law that states are being forced to implement, the legislation goes against the principle of anti-commandeering as articulated in the 10th Amendment. Standing in the Brackeens’ corner of the ring are numerous conservative think tanks, including the Cato and Goldwater Institutes. On the other side are the Native American tribes and various child welfare advocates, which would like to see the law stay in place. If ICWA is eliminated, they argue, there could be broad implications for tribal sovereignty. And one legal scholar warns that dismantling ICWA could make a profound impact on child welfare law; similarly, scrapping the legislation on anti-commandeering grounds could unintentionally lead to the challenging of seemingly unrelated laws.
Created in 1978, ICWA was a direct response to the forced removal of Native children from their homes. Before ICWA was created, “approximately 75-80 percent of Indian families living on reservations lost at least one child to the foster care system,” Montana’s Department of Public Health and Human Services reports. Overall, between a quarter and a third of all Native American children were being separated from their families and placed in foster care, according to the National Indian Child Welfare Association. Further, of those who were removed from their homes, 85 percent ended up with nonnative families or in institutions.
And all of this was happening in the shadow of the boarding schools that Native American children were sent to throughout much of the 20th century.
The removal of Native American children from their homes and their communities “created an existential threat to the survival of tribes and their ability to continue to govern themselves,” says Rachel Meeropol, senior staff attorney with the American Civil Liberties Union Racial Justice Program. ICWA was supposed to be a remedy to that; the law set strict rules around adoption, stipulating that a Native child must be placed either with a member of their extended family, a member of their tribal nation, or with another Native American tribe, or in an institution that has been approved by the Native American tribe, in that order of preference.
Today, the Brackeens and their attorneys claim that ICWA uses a race-based classification that violates the equal protection clause. They also say that ICWA is actually harmful to Native American children. Even with ICWA in place, Native American children are still far more likely to end up in foster care than children from other groups. South Dakota offers a particularly dramatic example: while Native Americans there comprise less than 9 percent of the state’s population, their children make up 52 percent of those in the foster care system. “An Indian child is 11 times more likely to be placed in foster care than a white child in South Dakota,” the American Civil Liberties Union reported in 2017, based on numbers provided by the South Dakota Department of Social Services.
“One of the things that is at stake for Indian children is the right to be treated the same as other children in foster care and adoption proceedings,” says Mark Fiddler, one of the Brackeens’ attorneys, who happens to be a tribal member himself. “We know from the data in almost every state Indian kids are in foster care longer than children of any other race. It takes longer for an Indian child to be adopted and that’s because of the placement preferences.”
“That states regulate domestic relations is a bedrock principle of American constitutional law. In the Indian Child Welfare Act, the federal government has hijacked state adoption laws or foster care laws.”
Fiddler, who says he believed in “cultural preservation” and who started the Indian Child Welfare Act Law Center in Minneapolis, an organization that was founded in 1993 in order to help enforce ICWA, says that he saw firsthand the problems the law causes. He points to the case of a child of a white mother and a Native American father. After the father disappeared, the mother died; Fiddler represented the maternal grandparents in their bid to adopt the child and faced sharp criticism from Native Americans, he says, “because I was representing white grandparents to adopt their own grandchild.”
Fiddler argues that while there was flexibility built into the 1978 law, it has become “a blunt instrument” that does “more harm than good.”
“What ICWA does is it takes a majority of the resources for the child off the table so the child can only be placed in an Indian home for adoption,” Fiddler explains. “And so the goal here is — if ICWA is struck down and is found to be race discrimination — then Indian children would have access to non-Indian foster and adoptive homes just like children of any other race.”
But Native Americans who want to see ICWA upheld say that the “Native American” designation isn’t racial but, rather, political. And that’s one of the biggest issues at stake in this lawsuit: Is the term “Native American” a racial or political category? The answer has wide-ranging implications.
“The arguments really go to the heart of tribal sovereignty,” says Beth Wright, staff attorney at the Native American Rights Fund. “If the Supreme Court rules that ICWA is a race-based law rather than a law that is rooted in a government to government relationship … then that really destroys tribal sovereignty and a lot of what’s called Title 25.” Title 25 is federal code that, broadly speaking, articulates Native Americans’ rights and spells out the U.S. government’s obligations to tribal peoples. The 50 chapters of Title 25 cover everything from education and health care to gaming and the development of tribal mineral resources.
“If the Supreme Court strikes down ICWA in significant part, indigenous families stand to lose essential protection, and we can see a return to the time when just so many children are being taken away from their families and their communities,” says Meeropol.
Those who don’t want to see ICWA overturned claim that the case is a cover, that it’s really an effort to grab Indian land and the resources attached to it, as well as an attempt to ratchet up profits for the adoption industry. All one has to do, they say, is look at who is standing on the two sides of the court and who is filing amicus briefs for the Brackeens or the other side.
“I want to distinguish a little bit between the Brackeens … and their attorneys. Matthew McGill is their lead attorney and he has been involved in challenges to the Indian Child Welfare Act for years,” says Dan Lewerenz, an assistant professor at the University of North Dakota’s School of Law. Observers have also noted that McGill works for a law firm, Gibson, Dunn, & Crutcher, that has clients in energy and gaming. In January 2022, McGill and his partners filed a lawsuit “on behalf of Maverick Gaming, an entertainment and gambling company, challenging the Indian Gaming Regulatory Act,” Bloomberg Law reported.
If the Supreme Court rules that ICWA is a race-based law rather than a government to government relationship, that destroys tribal sovereignty
Proponents of ICWA also say that a strike against the law could have an impact on non-Native children, as well. The ideas expressed by ICWA — that children who can’t live with their parents should at least remain within their extended family — have become “the gold standard” for child welfare, says Wright.
Should the Supreme Court accept the plaintiffs’ argument that child welfare “is the exclusive province of the states, and that the federal government has no authority to interfere,” says Lewerenz, various statutes would be at risk: one that sets federal standards for child removal and placement in foster care, as well as the International Child Abduction Remedies and the Inter country Adoption Act of 2000.
While the challenge to ICWA on the basis of equal protection has gotten the most airtime, the Brackeens’ attorneys have a multi pronged approach; among their arguments is the claim that ICWA violates the anti-commandeering doctrine enshrined in the 10th Amendment. In other words, they claim that holding states accountable for the enforcement of federal legislation amounts to an infringement of states’ rights. “The idea that states regulate domestic relations — that’s a bedrock principle of American constitutional law. And I can’t think of any other area of law where the federal government has hijacked state adoption laws or foster care laws,” says Fiddler.
But by taking on the issue of federal versus states’ rights, the case could also become precedent to challenge a variety of other laws that are entirely unrelated to ICWA, Native Americans or child welfare, says Lewerenz. He points to the Servicemembers’ Civil Relief Act — legislation that protects those on active duty from being sued and that also shields them from litigation for a year following their service — as another piece of legislation that could eventually be impacted.
The Brackeens’ legal team is arguing that ICWA commandeers states in two ways, Lewerenz explains. First, by creating rules that apply in state courts and secondly by imposing requirements like recordkeeping upon states. The plaintiffs claim that “ICWA is unique in this regard. But … Congress has been doing both of these things ever since the (country’s) founding,” says Lewerenz, citing an amicus brief filed by the Constitutional Accountability Center in the case that provides a wealth of examples of such legislation including the Parental Kidnapping Prevention Act and “laws requiring states to report missing persons to the U.S. Department of Justice, to submit information to FEMA, to document any asbestos in school buildings, and to keep an inventory of hazardous waste sites.”
So in theory, repealing ICWA could undermine the foundation of all these other laws — large and small.
Legal experts explain that a decision might not completely overturn ICWA — a ruling could dismantle some aspects of ICWA while keeping other portions of the law intact. They also say that even if ICWA is overturned on a federal level, many states have their own ICWA-like laws. The issue in that scenario, however, is that without the blanket of federal legislation, there would be “this patchwork of ICWA protections all over the country and that would be really problematic for tribes that already are underserved or under-staffed,” says Wright.
The Supreme Court heard oral arguments in November 2022; a ruling is expected by the end of June.