Constitutional Law

Supreme Court should uphold Indian Child Welfare Act, ABA says in amicus brief

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The ABA has urged the U.S. Supreme Court to uphold the Indian Child Welfare Act, writing in an amicus brief filed Thursday that Congress enacted the statute “under valid constitutional authority and on the basis of an extensive body of evidence and law.”

In its Aug. 18 brief, the ABA described its long-held interest in children’s law. The association not only operates the Center on Children and the Law, which promotes access to justice for children and families, but has worked with dependency court judges, attorneys and tribes to implement the ICWA and its regulations around the country.

The ABA has also adopted policies supporting the ICWA, as well as recognizing the sovereign status of tribes.

“This case presents important questions at the intersection of child welfare law, federal Indian law and constitutional law, including equal protection,” the ABA said in its brief. “Although these questions come to the court in the context of individual family stories, they are best viewed and answered in the context of the established legal frameworks that govern these areas of the law. ICWA not only fits comfortably within these larger legal frameworks, it is also an important component of them.”

In February, the Supreme Court agreed to review a ruling by the 5th U.S. Circuit Court of Appeals at New Orleans that invalidated certain provisions of the ICWA.

According to the federal statute, which was enacted in 1978, its purpose is “to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children and placement of such children in homes, which will reflect the unique values of Indian culture.”

Plaintiffs challenging the law included several couples who wanted to adopt or foster Native American children, as well as the states of Texas, Louisiana and Indiana.

A federal court in Texas invalidated most of the ICWA, holding that provisions in the statute violate equal protection under the Fifth Amendment by mandating racial preferences. The court also said the ICWA violates the 10th Amendment’s anti-commandeering doctrine by requiring states to enforce federal law.

After a 5th Circuit panel upheld the ICWA in its entirety, the full 5th Circuit considered the law and issued a split opinion in April 2021.

While the en banc majority ruled that Congress had the authority to enact the law, it also said some of its provisions unconstitutionally commandeer the states. This includes the provision that “active efforts” be made to prevent the breakup of Native American families.

The 5th Circuit, however, voted 8-8 on the constitutionality of the ICWA’s preference for placing children with “other Indian families” or with a licensed “Indian foster home.” This leaves in place the district court’s decision that the preferences violate equal protection guarantees.

The appeals court also split on whether placement preferences unconstitutionally commandeer the states in some circumstances, allowing the district court’s ruling that preferences are unconstitutional to stand.

The ABA contended in its amicus brief that child placement proceedings are not the exclusive domain of states, and that minimum federal standards are regularly applied to protect the rights of children and families in state proceedings. The association noted that the Supreme Court recognized the importance of federal protections in the child welfare field in its 1982 decision in Santosky v. Kramer.

“ICWA thus operates in an area of law that is inherently public and involves both federal and state authorities in addition to private family interests,” the ABA said. “If this court were to find ICWA unconstitutional because it applies federal standards to actions involving public and private interests in child custody, then by implication, the entire child welfare legal framework would be similarly unconstitutional.”

The ABA argued in its amicus brief that the ICWA builds on existing child welfare law to protect the rights of Native American children and families. The Supreme Court has been asked to review whether the statute discriminates against Native American children, the association said, but it does the opposite by helping to prevent the breakup of their families.

“ICWA’s preferences were designed by Congress—based on evidence collected after more than four years of hearings, testimony and debate—to protect and promote Indian children’s connections to family, community, tribe and culture and to foster a stronger sense of self and belonging than would result from placement with a nonkinship, non-Indian family,” the ABA said.

The ABA contended that the Supreme Court has consistently held that constitutional powers provide Congress with powers over Indian affairs. The association also said “consistent with tribal sovereignty and the constitutional Indian affairs powers, it has long been understood that ‘Indian’ is a legal and political classification” and not a racial classification.

An ABA news release is here. Hobbs, Straus, Dean & Walker filed the brief pro bono on behalf of the association.

The case is Haaland v. Brackeen. It was consolidated with Cherokee Nation v. Brackeen, Texas v. Haaland and Brackeen v. Haaland.

Oral arguments are scheduled for Nov. 9.

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