While ICWA has made strides in helping repair Indigenous communities and ensuring that the “best interests” of Indigenous children and their tribes are represented in child welfare proceedings, the law’s constitutionality is under attack in federal court. Having just been granted certiorari by the U.S. Supreme Court in February 2022, the case Haaland v. Brackeen is the first case in which a federal circuit court struck down ICWA provisions since the law’s enactment.2 While the outcome of this case is still uncertain, there is legitimate cause for concern that the results of the case will put both ICWA and the best interests of Indigenous communities at risk. This article explores these risks, provides history and legal context to the discussion of ICWA, and analyzes why this law is fundamental to ensuring the protection of the interests and existence of Indigenous communities.
I. The Horrific History Behind ICWA
A. The Systemic Removal of Indigenous Children
In a 1978 report, the House of Representatives’ Committee on Interior and Insular Affairs recognized that a “wholesale removal of Indian3 children from their homes” was occurring at a drastic rate in the United States.4 According to studies completed by the Association of American Indian Affairs in 1969 and 1974, “approximately 25–35 [percent] of all Indian children [were] separated from their families and placed in foster homes, adoptive homes, or institutions.”5 Furthermore, according to a 1969 survey of 16 states, 85 percent of Indian children in foster care were placed with non-Indigenous families.6
Since the 1880s, the forced assimilation of Indigenous children into white America has been a formal project of the U.S. government.7 This project began when the Bureau of Indian Affairs (BIA) established many boarding schools specifically intended for the whitewashing of Indigenous children.8 After forcibly removing Indigenous children from their families and communities, the schools followed the canon of assimilation employed by Captain Richard Henry Pratt, who founded the first federal boarding school for Indigenous children: “Kill the Indian in him, and save the man.”9 Methods of whitewashing included completely separating the children from their families and tribes and harshly punishing them when they attempted to engage with their native culture in any way.10
In 1958, the BIA shifted gears to focus on a different means of assimilation: placing Indigenous children in the homes of non-Indigenous families.11 The Indian Adoption Project, which “promote[d] adoption of Native children from sixteen western states by white adoptive families in the East,”12 was put into effect by the Child Welfare League of America and was active from 1958 to 1967.13 Following the Indian Adoption Project was the Adoption Resource Exchange of North America, which was established in 1966 as “the first national adoption resource exchange devoted to finding homes for hard-to-place children.”14 This program continued the government’s assimilation scheme by placing Indigenous children with predominately white families.15
These federal assimilation projects were carried out by a child welfare system run by non-Indigenous judges and social workers who had deep explicit and implicit biases against Indigenous persons, as well as a blatant disregard for, and clear ignorance of, Indigenous social norms, cultural values, and customs of childrearing.16 Furthermore, when Indigenous custom conflicted with the white American conceptualization of childrearing, the Indigenous parents and families were deemed unfit to raise their children.17 For example, the practice of communal childrearing or the involvement of extended family in caring for a child, which is common in many Indigenous cultures, was seen from a Euro-American viewpoint as being neglectful and sometimes prompted a child’s removal on the grounds that their biological parents had abandoned them.18 Furthermore, once the child was removed, “[d]iscriminatory standards [] made it virtually impossible for most Indian couples to qualify as foster or adoptive parents, since [the standards] are based on middle-class values.”19
The government also discriminated against Indigenous families by disproportionately using issues that exist among families of all races and identities as grounds for removing indigenous children from their homes.20 For example, alcoholism, a disease that does negatively affect many Indigenous communities, was a common ground for the removal of Indigenous children.21 However, “the number of Native American children removed from their homes because of this malady was disproportionate compared to other families afflicted by the disease.”22
The separation scheme that displaced thousands of Indigenous children employed both the state and federal government.23 This interference with Indigenous communities was legal due to the understanding that the U.S. government has paramount control over Indigenous tribes, despite legal precedent that purports tribal sovereignty. For example, the Commerce Clause of the U.S. Constitution, which entrusts with Congress the power “to regulate Commerce with foreign nations, and among the several states, and with the Indian tribes,”24 simultaneously recognizes Indigenous tribes as being other than the United States, while also asserting that the U.S. government has overarching authority over the tribes.
While the U.S. Supreme Court has long-since declared Indigenous tribes to be “sovereign and independent states; possessing both the exclusive right to their territory, and the exclusive right of self-government within that territory,” their sovereignty is not absolute.25 The U.S. government’s relationship to the tribes has been described as “resembl[ing] that of a ward to his guardian,”26 as well as a “trust relationship,”27 in which the federal government owes the tribes certain obligations and protections.28 State governments, on the other hand, are purported to be “on equal footing” with tribal governments.29 However, in 1953 Congress enacted Public Law 280,30 which “grants certain states concurrent jurisdiction over child custody proceedings in cases that otherwise would fall within the exclusive jurisdiction of the tribe.”31 Thus, this law has allowed states to interfere with custody proceedings regarding Indigenous children.
Through many government programs, the United States achieved its project of Indigenous erasure on more than one level: Not only were Indigenous children physically separated from their families and communities, but their placement in BIA schools and non-Indigenous homes isolated them from their culture, forcing them to assimilate to the white colonizer narrative of what it means to be “civilized” and “American.” By targeting Indigenous children, who are the future of their tribes, the U.S. government was halting “the transmission of tribal heritage”32 and ensuring that Indigenous communities would wither away.
B. Legislative History and ICWA’s Enactment
In the late 1960s and early 1970s, Indigenous rights activists called on Congress to rectify the wrongs suffered by Indigenous communities.33 In 1974, the Senate Subcommittee on Indian Affairs of the Committee on Interior and Insular Affairs held hearings to discuss the discriminatory practices conducted by welfare agencies and the courts in regard to their removal of Indigenous children from their families.34 Committee members also heard testimony regarding the negative effects that such removal has upon Indigenous communities and the trauma experienced by the children who were taken from their homes and forced to conform to white American ideals and social norms.35 More hearings were held in 1977 and 1978, with Congress ultimately finding:
that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
that the States . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.36
In 1978, the Indian Child Welfare Act was enacted.37 Congress made its legislative intent clear: ICWA was “to protect the best interests 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 from their families. . . .”38
C. ICWA Provisions and Legislative Development
ICWA established that tribes have “exclusive jurisdiction”39 over “child custody proceedings”40 involving an “Indian child,” defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”41
For involuntary proceedings, an Indian child’s parent or custodian and tribe must be given written notification “of the pending proceedings and of their right of intervention.”42 When pursuing removal of an Indian child from their family under state law, ICWA requires that “active efforts [are] made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. . . .”43 Additionally, ICWA prohibits the placement of Indian children in foster care “in the absence of a determination, supported by clear and convincing evidence,” that “the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child”44 and prohibits the termination of parental rights absent “a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”45
If the ICWA requirements are met and it is determined that an Indian child’s removal from their family is necessary, then “[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with: (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”46
Furthermore, any Indian child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his or her special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with—
(i) a member of the Indian child’s extended family;
(ii) a foster home licensed, approved, or specified by the Indian child’s tribe;
(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.47
In the years following ICWA’s enactment, 33 states adopted legislation aimed at “clarify[ing] and expand[ing] upon the ICWA’s requirements.”48 Developments in the federal law also occurred in the wake of the law’s enactment, including revisions of ICWA regulations and the addition of various guidelines.49 In February 2015 and then in December 2016, the BIA issued new guidelines concerning ICWA implementation.50 While those guidelines are not legally binding, 51 in June 2016 the BIA promulgated “the first-ever comprehensive federal regulations addressing ICWA implementation for state courts and public and private agencies,” which are referred to as the Final Rule.52 Unlike the BIA guidelines, which “complement” the regulations, the Final Rule is legally binding.53
II. ICWA in Practice: Successes and Shortcomings
A. ICWA’s Success
ICWA has been characterized as “the gold standard of child welfare for all children and families.”54 The Act serves the “interests in stability, relational permanency, and community and cultural connections” that are paramount in child welfare best practices.55 Furthermore, ICWA’s provisions have helped to keep Indigenous children in the child welfare system connected to their cultures, tribes, and families.56
While research indicates that a child’s best interests are served when they are able to stay with their immediate family, there are also instances where a child’s removal from their immediate relations is the best and safest option.57 According to the National Indian Child Welfare Association, ICWA has helped to “[l]essen[] the trauma of removal [for Indigenous children] by promoting placement with family and community,” has “[m]andate[d] that families receive intensive services (‘active efforts’) to prevent child abuse and neglect,” has “[p]romote[d] the best interest of Indian children by keeping them connected to their culture, extended family, and community, which are proven protective factors,” and has “[p]romote[d] placement stability by ensuring that voluntary adoptions are truly voluntary.”58 Finally, ICWA has also helped to facilitate states’ relationships with tribes, allowing them to work together in the best interests of Indigenous children.59
While it is difficult to fully assess the success of ICWA on an empirical level, seeing as federal data only report whether a state identifies a child as “American Indian or Alaska Native,” studies indicate that, in practice, compliance with ICWA provisions differs among the states.60 When an Indigenous child is removed from their home, their placement preferences generally follow ICWA guidelines, and many are placed with extended family.61 Furthermore, federal data reveal that “American Indian/Alaska Native children have the highest rate of kinship care . . . [,] the lowest rate of congregate care, i.e., placement in institutional settings, and have one of the lowest rates of children aging out of care without an adoptive family.”62 These statistics indicate that ICWA has worked in practice to achieve many of the goals identified by Congress.
B. Issues That Still Exist
Despite ICWA’s apparent success, there are still many concerns and issues regarding the treatment of Indigenous children in the child welfare system. Indigenous children are three times more likely to be removed from their families by state child welfare systems than non-Indigenous children.63 This means that Indigenous children are overrepresented in the child welfare system, which makes the states’ compliance with ICWA even more essential. However, state noncompliance with ICWA is a relevant issue that is often the result of “inadequate training, misinterpretations of the law, lack of data, and willful ignorance.”64 Three common instances of noncompliance include the “[f]ailure to identify ICWA-eligible children early on and ensure they are receiving the protections of the law,” “[p]roviding inadequate—or no—notice of proceedings to key parties,” and failing to place children with extended family or other members of their tribal community “without good cause, or placing children in a more restrictive setting than necessary.”65
Studies have also shown that Indigenous children in the child welfare system disproportionately suffer from a number of other issues. For example, Indigenous children are disproportionately victims of maltreatment: “15% of American Indian children are likely to be victims of substantiated maltreatment between birth and 18 years old. . . .”66 Oftentimes, challenges in identifying Indigenous children result in the underreporting of such statistics, which means that maltreatment of Indigenous children is likely more ubiquitous than it appears.67
The underreporting of issues faced by Indigenous children in the child welfare system is exposed in other contexts as well. Studies indicate that “Indigenous Only” children in foster care “are disproportionately under-indicated to have disabilities, emotional disturbance, other medical issues, sensory deficits in vision and hearing, and intellectual or developmental disability,” even though children in the child welfare system are at higher risk for experiencing these conditions.68 Similarly, “Indigenous Only” children in the system “are under-indicated for sexual abuse, physical abuse, child behavior concerns, or parents’ inability to cope as reasons for entry.”69 The underreporting of these issues continues to put many of these children at risk and counteracts ICWA’s goals by perpetuating the disparate treatment of Indigenous children in this system.
III. ICWA Case Law and Constitutional Challenges
The U.S. Supreme Court has only elected to hear two ICWA cases since the law’s enactment.70 First, in the 1989 case Mississippi Band of Choctaw Indians v. Holyfield, the lower court held ICWA’s exclusive jurisdiction in the tribal court did not apply to twins who were born off the reservation, although the twins’ parents were members of the Choctaw Tribe and had permanent residence on the reservation.71 The Supreme Court held that “[s]ince, for the purposes of the ICWA, the twin babies in this case were domiciled on the reservation when adoption proceedings were begun, the Choctaw tribal court possessed exclusive jurisdiction pursuant to 25 U.S.C. § 1911(a),” and thus the adoption decree entered by the state court must be vacated.72 The holding in this case provided guidance to state courts by establishing that “Congress intended a uniform federal law of domicile for the ICWA” and, therefore, that the definition of “domicile” was not a matter of state law.73
The second ICWA case heard by the Supreme Court was Adoptive Couple v. Baby Girl, which was decided in 2013.74 In this case, an Indigenous child’s biological father, who was a member of the Cherokee Nation, sought custody of his child once adoption proceedings were initiated.75 The Court held that the ICWA provision regarding the termination of parental rights pursuant to 25 U.S.C. § 1912(f) did not apply to the child’s father due to his lack of “legal or physical custody” of the child at the time the adoption process was initiated.76 While this holding constituted a narrow interpretation of the ICWA provisions, the Association on American Indian Affairs and the National Indian Child Welfare Association observed that “some of the majority opinion’s holdings are stated in broad terms that some parties will likely reference in attempts to apply the Court’s limitations upon the application of ICWA more broadly.”77
In terms of other ICWA challenges, prior to 2018 most constitutional challenges to ICWA claiming that the Act allows unequal treatment of parties on the basis of race had failed.78 The notion that “as long as a rational basis existed for Congress to legislate as it did, the authority of Congress extended to the legislative purpose achieved by the ICWA” was generally accepted among courts.79
IV. Haaland v. Brackeen
A. Background
In April 2021, a federal circuit court struck down parts of the ICWA statute.80 The plaintiffs in Brackeen included the states of Texas, Louisiana, and Indiana,81 and non-Indigenous couples who sought to adopt children who are “Indian Children” per ICWA’s definition.82 The defendants in this case are the United States; the U.S. Department of Interior and its Secretary Deb Haaland, in her official capacity; the BIA and its Director Darryl LaCounte, in his official capacity; and the Department of Health and Human Services and its Secretary Xavier Becerra, in his official capacity (“Federal Defendants”).83 The Cherokee Nation, the Oneida Nation, the Quinalt Indian Nation, the Morengo Band of Mission Indians, and the Navajo Nation were all granted motions to intervene as defendants (“Tribal Defendants).84
The lead plaintiffs are the Brackeens, who are from Texas.85 They pursued adoption of A.L.M., whose biological mother is an enrolled member of the Navajo Nation and whose father is an enrolled member of the Cherokee Nation.86 When A.L.M. was removed from his paternal grandmother’s custody and placed into foster care with the Brackeens, the couple “sought to adopt him with the support of his biological parents and paternal grandmother,” and with the state’s notification to both the Navajo and Cherokee Nations.87 During the adoption proceedings, the Brackeens “entered into a settlement with the Texas state agency and A.L.M’s guardian ad litem specifying that, because no one else sought to adopt the child, ICWA’s placement preferences did not apply.”88 After successfully adopting A.L.M. in 2018, the Brackeens attempted to adopt A.L.M’s sister, but the Navajo Nation contested the adoption.89 Two other couples joined the Brackeens in challenging ICWA: the Librettis and the Cliffords, who alleged that they also ran into barriers when trying to adopt Indigenous children due to ICWA’s provisions.90
In October 2017, the plaintiffs filed a complaint against the Federal Defendants, “argu[ing] that ICWA and the Final Rule violate equal protection and substantive due process under the Fifth Amendment and the anticommandeering doctrine that arises from the Tenth Amendment,” and “sought a declaration that the provisions of ICWA and the Final Rule violate the nondelegation doctrine and the [Administrative Procedure Act (APA)].”91 In 2018, the district court held that ICWA and the Final Rule violate equal protection, the Tenth Amendment, and the nondelegation doctrine, and that the challenged provisions of the Final Rule are invalid under the APA.92 The defendants appealed the decision, and the case was heard by the Fifth Circuit Court of Appeals.93 In 2019, a three-judge panel reversed the portions of the district court’s decision invalidating parts of ICWA, with one judge concurring in part and dissenting in part. 94
B. Fifth Circuit En Banc Decision
In 2021, the Fifth Circuit produced a highly fractured en banc opinion, in which the judges ultimately upheld the general constitutionality of ICWA, but also struck down a number of ICWA provisions.95 Specifically, the en banc court held that “ICWA’s ‘active efforts,’ § 1912(d), expert witness, § 1912(e) and (f), and recordkeeping requirements, § 1915(e), unconstitutionally commandeer state actors.”96 The en banc majority also ruled that, consistent with its holding regarding §§ 1912(d), 1912(e) and (f), and 1915(e), “the Final Rule violated the APA to the extent that it implemented these unconstitutional provisions” and that “25 C.F.R. § 23.132(b)—the part of the Final Rule interpreting § 1915’s ‘good cause’ standard to require proof by clear and convincing evidence—violated the APA.”97 Finally, the court was deadlocked on the district court’s ruling that § 1915(a)(3), the ICWA adoptive placement preference for “other Indian families,” and § 1915(b)(iii), “its foster care placement preference for a licensed ‘Indian foster home,’” violate equal protection.98
C. Supreme Court Case
In September 2021, the state of Texas, the individual plaintiffs, the Federal Defendants, and the Tribal Defendants all filed petitions for certiorari with the U.S. Supreme Court.99 All the petitions asked the Court to review the Fifth Circuit decision and assess ICWA’s constitutionality.100 Collectively, the petitions asked that the Court address the minimum federal standards set forth in ICWA, the law’s placement preferences for Indigenous children, the anticommandeering claims, the recordkeeping claims, and standing.101 On February 28, 2022, the Supreme Court granted certiorari for all four petitions.102 The Court heard oral arguments on November 9, 2022.103
The Federal Defendants and the Tribal Defendants ask that the Fifth Circuit’s decision on the anticommandeering claims be overturned and that the Supreme Court reject the claims that ICWA’s placement preferences are racially discriminatory.104 In terms of the placement preferences issue, these parties argue that ICWA’s placement preferences are political classifications based on tribal membership, rather than racial classifications, and therefore are subject to rational basis scrutiny.105 They further argue that ICWA’s placement preferences survive rational basis scrutiny because “applying ICWA’s protections to children who are tribal members or the children of tribal members and eligible for tribal membership clearly advances Congress’s distinctive duty to protect the ‘continued existence and integrity of Indian tribes.’”106 Therefore, these parties rely on the original legislative intent behind ICWA’s enactment and hope that the justices will recognize a lasting government interest in both keeping Indigenous children with their tribal communities and continuously working to rectify the historic atrocities committed by the United States against Indigenous tribes and children.
On the other hand, in both Texas’s brief and the individual plaintiffs’ brief, the parties ask the Court to affirm the rulings in their favor and to invalidate the challenged parts of the statute that the Fifth Circuit upheld.107 Regarding placement preferences, the parties contend that the provision discriminates against would-be adoptive families on the basis of race and thus is unconstitutional.108 To garner support for this argument, the parties depict ICWA as disadvantaging Indigenous children by depriving them of suitable foster and adoptive placements because the placements are not with Indigenous families.109
Four separate amicus briefs were submitted by 497 tribal nations and 62 Native organizations,110 23 states and the District of Columbia,111 87 congresspeople,112 and 27 child welfare and adoption organizations113 specifically supporting the Federal and Tribal Defendants. Each brief tackles an essential argument in support of ICWA. For example, the Tribal Amicus Brief delves into the history behind ICWA’s enactment, the United States’ role in the systemic removal of Indigenous children from their tribes, and the importance of protecting tribal sovereignty.114 An amicus brief filed by California and 22 other states and the District of Columbia describes ICWA as “a critical tool for protecting Indian children and fostering state-tribal collaboration.”115 This brief also displays bipartisan support for ICWA, seeing as the participating states’ attorneys general represent both sides of the aisle.116 Finally, the Casey Family Programs Brief speaks from a child welfare point of view, noting that “ICWA exemplifies child welfare best practices.”117
V. Looking Forward—Possible Outcomes and Effects of Brackeen
The Supreme Court could issue a ruling in favor of the United States and the Tribal Defendants, and ICWA would remain in place. However, given the highly fissured nature of the Fifth Circuit’s decision, the Court could also issue a similarly splintered decision that invalidates parts of ICWA, which could manifest in different ways.
A. Ruling That ICWA Employs Race-Based Decision-Making
If the Supreme Court were to rule that tribal affiliation constitutes a racial designation, the ruling could significantly crack the foundation of federal Indigenous law. A ruling that ICWA violates Equal Protection could “caus[e] a ‘radical’ and ‘fundamental reordering’ of the federal government’s relationships to tribes”118 and “set off a chain reaction, one that could impact the constitutionality of tribal land, police, health services, gaming, even tribal governments.”119 Ultimately, federal principles regarding tribal sovereignty would be severely disrupted, thus putting the tribes at risk of once again being entirely subjected to the rules of a nation that is not their own.120
The Equal Protection argument also asks that the definition of an “Indian child,” which plaintiffs argue is a racial classification, be subject to strict scrutiny.121 Subject to strict scrutiny, the definition of an “Indian child” could be significantly narrowed, which would not only limit the protections available for Indigenous children, but also undermine their membership in their ancestral tribes and nations. Ultimately, if the Court were to recognize an Indigenous classification as a racial classification, rather than continuing the long-standing tradition of treating it as a political classification, then “the entire legal structure defending the legal rights of Indigenous nations could crumble.”122 The sovereignty of Indigenous nations would be put at risk.123
However, given the current composition of the Court, such a drastic ruling appears unlikely. The only justice who has indicated that he would reconsider the “basics of federal Indian law” is Justice Thomas; the other justices have not made similar implications.124 Furthermore, Justice Gorsuch has been particularly vocal in his commitment to “holding the federal government accountable for promises made to tribes,” which can be seen in McGirt v. Oklahoma, where he wrote for the majority and held that the land in the Creek Nation reservation, established in the 19th century, remains in the tribe’s possession under the Major Crimes Act since Congress has not asserted otherwise.125 Thus, given the apparent lack of interest among the justices to totally reverse foundational Indigenous law, the Court would be unlikely to issue such a drastic ruling in Brackeen.
B. Ruling That Parts of ICWA Violate the “Anti-commandeering” Doctrine
One alternative to a ruling that ICWA is racially discriminatory would be a “narrowly tailored decision striking down portions of ICWA on the basis of the Tenth Amendment’s ‘anti-commandeering’ principle, along the lines of the Fifth Circuit’s ruling.”126 In its decision, the Fifth Circuit determined that ICWA’s “active efforts” provision under § 1912(d) and its “expert witness” requirement under § 1912(e) and (f) violate the anti-commandeering doctrine by forcing the states to comply with these provisions in child welfare proceedings, which is a traditionally state-run process.127 If this decision were to be affirmed, it could be “part of a much broader movement by conservative judges really limiting the power of the federal government to pass laws that states have to follow.”128 While there are many other ways that the Court could issue a “narrowly tailored decision” given the varied nature of the Fifth Circuit’s holdings, this potential decision could create many problems for the future of ICWA.
C. Other Effects
A Supreme Court ruling invalidating part of the ICWA statute could also affect public opinion of ICWA. For those who do not know of the history of tribal sovereignty and the relationship between the U.S. government and federally recognized tribes, they might read about Brackeen and simply assume that ICWA prevents Indigenous children from receiving placements in the child welfare system due to what they might consider to be racial discrimination against non-Indigenous families. However, what is important to recognize is that “ICWA applies to children who are citizens . . . of a federally recognized tribe. . . . ICWA does not apply to individuals who merely self-identify as American Indian or Alaska Native.”129 Thus, without more context, people could make incorrect assumptions that ICWA is racially discriminatory and fail to recognize that the law concerns an individual’s citizenship in a tribe, rather than their racial identification as an Indigenous person.
Like the individual plaintiffs contend, others could also come to view ICWA as no longer serving a legitimate legislative purpose because the government is no longer engaged in the “overtly racist” behavior of removing Indigenous children from their families without just cause.130 However, despite the strides that ICWA has made in terms of rectifying the child welfare system’s treatment of Indigenous children, Indigenous children today continue to be overrepresented in the child welfare system.131 Given this overrepresentation, and the identification of various issues that reveal the disparate treatment of Indigenous children within the child welfare system, ICWA is still needed to guide the system in its treatment of Indigenous children.
Conclusion
ICWA was intended “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. . . .”132 However, Haaland v. Brackeen ushers in a new reality—one in which ICWA could be completely destroyed, or broken apart bit by bit. This would be detrimental for many reasons, but primarily because ICWA’s work is not done, despite some believing the law has served its purpose. The overrepresentation of Indigenous children in the child welfare system, as well as the disparate treatment they suffer, signifies that tribes are still being robbed of their future in the loss of their children and that Indigenous families are still at the mercy of explicit and implicit biases. Moreover, no legislative action will ever be able to completely atone for the sins of the U.S. government and its repugnant, disturbing, and racist history of systemic Indigenous annihilation. Therefore, the United States needs laws like ICWA, laws that do whatever they can to give back to Indigenous people what this country has been taking from them for centuries. Otherwise, Indigenous erasure will continue, and the United States will remain a colonizer, one that is unworthy of being characterized as a country that champions “liberty and justice for all.”
Endnotes
1. . 25 U.S.C. §§ 1901–03, 1911–23.
2. . Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021) (en banc), cert. granted sub nom. Cherokee Nation v. Brackeen, 142 S. Ct. 1204 (2022), and cert. granted, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 142 S. Ct. 1205 (2022), and cert. granted, 142 S. Ct. 1205 (2022).
3. . The term “Indian” will only appear in this article when quoted from other sources and in reference to groups and laws that use the word. Otherwise, the term “Indigenous” will be used, as it can be used to broadly describe the original persons and communities of the Americas.
4. . Indian Child Welfare Program: Hearings Before the Subcomm. on Indian Affs. of the S. Comm. on Interior and Insular Affs., 93d Cong. 3 (1974) (statement of William Byler, Exec. Dir., Ass’n on Am. Indian Affs.) [hereinafter 1974 Hearings], https://narf.org/nill/documents/icwa/federal/lh/hear040874/hear040874.pdf.
5. . Id. at 15.
6. . Id. at 17.
7. . Boarding Schools and the History of ICWA, Kids Matter Inc., https://kidsmatterinc.org/legal-help/native-american-children/boarding-schools-and-the-history-of-icwa/ (last visited Oct. 28, 2022).
8. . Kelly Gaines-Stoner et al., The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children 1, 3 (3d ed. 2018); Brackeen v. Haaland, 994 F.3d 249, 282 (5th Cir. 2021) (en banc) (Dennis, J., opinion) (“Although the total number of children enrolled in the boarding schools is unknown, in 1895 alone 157 boarding schools housed more than 15,000 Indian children.”), cert. granted sub nom. Cherokee Nation v. Brackeen, 142 S. Ct. 1204 (2022), and cert. granted, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 142 S. Ct. 1205 (2022), and cert. granted, 142 S. Ct. 1205 (2022).
9. . R.H. Pratt, The Advantages of Mingling Indians with Whites, 19 Ann. Proc. of the Nat’l Conf. of Charities & Correction 45, 46 (1892); Boarding Schools and the History of ICWA, supra note 7.
10. . Gaines-Stoner et al., supra note 8, at 3.
11. . Indian Adoption Project, Upstander Project, https://upstanderproject.org/firstlight/iap (last visited Aug. 29, 2022).
12. . Id.
13. . The Adoption History Project, Univ. of Or., https://pages.uoregon.edu/adoption/topics/IAP.html (updated Feb. 24, 2012) (395 children were placed with white families in Illinois, Indiana, New York, Massachusetts, Missouri, and other states).
14. . Id.
15. . Id.
16. . Gaines-Stoner et al., supra note 8, at 3–4.
17. . Id.
18. . Id. at 3.
19. . Id. at 21.
20. . Id. at 4.
21. . Id. at 3–4.
22. . Id. at 4.
23. . Id. at 2–3.
24. . U.S. Const. art. I, § 8, cl. 3.
25. . Cherokee Nation v. Georgia, 30 U.S. 1, 2 (1831).
26. . Id. at 10.
27. . United States v. Mitchell, 463 U.S. 206, 224–25 (1983).
28. . Id. (this relationship was primarily established in the General Allotment Act, which gave the federal government control over the management of tribal resources and lands for the tribes’ purported benefit).
29. . Separation of Powers: State-Tribal Relations and Interstate Compacts, Nat’l Conf. of State Leg., https://www.ncsl.org/research/about-state-legislatures/separation-of-powers-tribal-interstate-relations.aspx (last visited Oct. 16, 2022).
30. . Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588 (1953).
31. . ICWA Guide Online: Jurisdiction, Nat’l Indian L. Libr., https://narf.org/nill/documents/icwa/faq/jurisdiction.html#Q12.
32. . Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 34 (1989) (quoting Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians & Rep. of the Nat’l Tribal Chairmen’s Ass’n).
33. . The Adoption History Project, supra note 13.
34. . 1974 Hearings, supra note 4, at 2.
35. . Id.
36. . 25 U.S.C. § 1901 (paragraph numbering omitted).
37. . About ICWA, Nat’l Indian Child Welfare Ass’n, https://www.nicwa.org/about-icwa/ (last visited Aug. 29, 2022).
38. . 25 U.S.C. § 1902.
39. . Id. §1911(a).
40. . “Child custody proceedings” under ICWA include foster care placements, terminations of parental rights, preadoptive placements, and adoptive placements. Id. § 1903(1); see also Nat’l Indian Child Welfare Ass’n, A Guide to Compliance with the Indian Child Welfare Act 2 (Nov. 2016), https://www.nicwa.org/wp-content/uploads/2016/11/Guide_ICWA_Compliance.pdf.
41. . 25 U.S.C. § 1903(4).
42. . Id. § 1912(a).
43. . Id. § 1912(d).
44. . Id. § 1912(e).
45. . Id. § 1912(f).
46. . Id. § 1915(a).
47. . Id. § 1915(b).
48. . Gaines-Stoner et al., supra note 8, at 27.
49. . About ICWA, supra note 37.
50. . Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10146 (Feb. 25, 2015); Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96476 (Dec. 30, 2016). The December 2016 guidelines replaced guidelines from 1979 and the 2015 guidelines. Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. at 96477.
51. . Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. at 96477.
52. . About ICWA, supra note 37; see Indian Child Welfare Act Proceedings, Final Rule, 81 Fed. Reg. 38778 (June 14, 2016).
53. . About ICWA, supra note 37; Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. at 96476–77.
54. . Brief of Casey Family Programs & Ten Other Child Welfare and Adoption Organizations as Amici Curiae in Support of Petitioners at 6, Haaland v. Brackeen, Nos. 21-376 & 21-377 (U.S. Oct. 8, 2021)) (citation omitted) [hereinafter Casey Brackeen cert. brief].
55. . Id. at 16.
56. . Id. at 21–22.
57. . Id. at 5, 7, 10–11.
58. . Nat’l Indian Child Welfare Ass’n, Setting the Record Straight: The Indian Child Welfare Act Fact Sheet (Sept. 2015), https://www.nicwa.org/wp-content/uploads/2017/04/Setting-the-Record-Straight-ICWA-Fact-Sheet.pdf (emphasis omitted).
59. . Id.
60. . Casey Brackeen cert. brief, supra note 54, at 21; Gordon E. Limb et al., An Empirical Examination of the Indian Child Welfare Act and Its Impact on Cultural and Familial Preservation for American Indian Children, 28 Child Abuse & Neglect 1279, 1287 (2004), https://doi.org/10.1016/j.chiabu.2004.06.012.
61. . Limb et al., supra note 60, at 1287.
62. . Casey Brackeen cert. brief, supra note 54, at 21. The brief cited a study by Casey Family Programs showing that in 2016, 35% of American Indian or Alaska Native children were in kinship foster care placements, compared to 32% for white children and 31% for Black children; 8% of Indigenous children were in congregate care, compared to 12% for white children and 14% for Black children; and 6% of Indigenous children aged out of care without an adoptive family, compared to 7% for white children and 11% for Black children. Casey Fam. Programs, Native American/Alaska Native Children Overview (2019), https://www.casey.org/media/Native-American-Alaska-Native-data-trends.pdf (cited in Casey Brackeen cert. brief, supra note 54, at 21).
63. . Setting the Record Straight: The Indian Child Welfare Act Fact Sheet, supra note 58.
64. . Id.
65. . Id. (emphasis omitted).
66. . Erin J. Maher et al., Placement Patterns of American Indian Children Involved with Child Welfare: Findings from the Second National Survey of Child and Adolescent Well-Being 4 (Casey Fam. Programs 2015), https://www.casey.org/media/NSCAW-Placement-Patterns-Brief.pdf.
67. . Id.
68. . Claudette Grinnell Davis, Allison Dunnigan & Bailey B. Stevens, Indigenous-Centered Racial Disproportionality in American Foster Care: A National Population Study, J. Pub. Child Welfare 17 (2022), https://doi.org/10.1080/15548732.2021.2022565.
69. . Id. at 18.
70. . Gaines-Stoner et al., supra note 8, at 23.
71. . 490 U.S. 30, 38–40 (1989).
72. . Id. at 53.
73. . Id. at 47.
74. . 570 U.S. 637, 644–45 (2013); see Gaines-Stoner et al., supra note 8, at 23–24.
75. . Adoptive Couple, 570 U.S. at 644–45.
76. . Id. at 650.
77. . Ass’n on Am. Indian Affs. & Nat’l Indian Child Welfare Ass’n, A Guide to the Supreme Court Decision in Adoptive Couple v. Baby Girl 3, https://www.indian-affairs.org/uploads/8/7/3/8/87380358/analysis_of_adoptive_couple_v__baby_girl_-_final.pdf.
78. . Gaines-Stoner et al., supra note 8, at 25–26. See In re Marcus S., 638 A.2d 1158 (Me. 1994); In re D.L.L. & C.L.L., 291 N.W.2d 278 (S.D. 1980); In re Appeal in Pima Cnty. Juv. Action No. S-903, 635 P.2d 187 (Ariz. Ct. App. 1981); In re Miller, 451 N.W.2d 576 (Mich. Ct. App. 1990); State ex rel. C.S.D v. Graves, 848 P.2d 133 (Or. App. 1993); In re Application of Angus, 655 P.2d 208 (Or. Ct. App. 1982).
79. . Gaines-Stoner et al., supra note 8, at 26.
80. . Brackeen v. Haaland, 994 F.3d 249, 288–89 (5th Cir. 2021) (en banc), cert. granted sub nom. Cherokee Nation v. Brackeen, 142 S. Ct. 1204 (2022), and cert. granted, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 142 S. Ct. 1205 (2022), and cert. granted, 142 S. Ct. 1205 (2022) .
81. . Unlike the other parties, Indiana and Louisiana did not file a petition for certiorari in the U.S. Supreme Court. Andrew Hamm, Four Petitions on the Constitutionality of the Indian Child Welfare Act, SCOTUSblog (Sept. 24, 2021), https://www.scotusblog.com/2021/09/four-petitions-on-the-constitutionality-of-the-indian-child-welfare-act/.
82. . Brackeen, 994 F.3d at 288–89 (Dennis, J., opinion).
83. . Id. at 290.
84. . Id. at 289–90.
85. . Id. at 288.
86. . Id.
87. . Id.
88. . Id.
89. . Id. at 289.
90. . Id. at 289–90.
91. . Id. at 290.
92. . Id.; see Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018), aff’d in part, rev’d in part sub nom. Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021) (en banc), cert. granted sub nom. Cherokee Nation v. Brackeen, 142 S. Ct. 1204 (2022), and cert. granted, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 142 S. Ct. 1205 (2022), and cert. granted, 142 S. Ct. 1205 (2022).
93. . Brackeen, 994 F.3d at 291 (Dennis, J., opinion).
94. . Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019), reh’g en banc sub nom. Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021).
95. . Brackeen, 994 F.3d 249.
96. . Id. at 268 (per curiam opinion); Kate Fort, Brackeen Decision Summary, Turtle Talk (Apr. 7, 2021), https://turtletalk.blog/2021/04/07/brackeen-decision-summary/; Matthew D. Adler, State Sovereignty and the Anti-Commandeering Cases, 574 Annals of Am. Acad. of Pol. Sci. 158 (2001) (“The anti-commandeering doctrine . . . announced by the Supreme Court in New York v. United States and Printz v. United States, prohibits the federal government from commandeering state governments: more specifically, from imposing targeted, affirmative, coercive duties upon state legislators or executive officials.”).
97. . Brackeen, 994 F.3d at 269 (per curiam opinion).
98. . Id. at 268.
99. . Brief for Petitioner the State of Texas, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, 21-380 (U.S. May 26, 2022); Brief for Individual Petitioners, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, 21-380 (U.S. May 26, 2022); Brief for the Federal Parties, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, 21-380 (U.S. Aug. 2022); Brief for Tribal Defendants, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, 21-380 (U.S. Aug. 12, 2022); see also Kate Fort, Brackeen/ICWA CLE from Fort, Turtle Talk (Mar. 2, 2022), https://turtletalk.blog/tag/brackeen-v-haaland/.
100. . Brief for Petitioner the State of Texas, supra note 99; Brief for Individual Petitioners, supra note 99; Brief for the Federal Parties, supra note 99; Brief for Tribal Defendants, supra note 99.
101. . Brief for Petitioner the State of Texas, supra note 99; Brief for Individual Petitioners, supra note 99; Brief for the Federal Parties, supra note 99; Brief for Tribal Defendants, supra note 99.
102. . Haaland v. Brackeen, 142 S. Ct. 1205 (2022); Cherokee Nation v. Brackeen, 142 S. Ct. 1204 (2022); Brackeen v. Haaland, 142 S. Ct. 1205 (2022); Texas v. Haaland, 142 S. Ct. 1205 (2022).
103. . Transcript of Oral Argument, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, 21-380 (U.S. Nov. 9, 2022).
104. . Brief for the Federal Parties, supra note 99; Brief for Tribal Defendants, supra note 99; see also Matt Ford, The Supreme Court Could Save Tribal Sovereignty—or Demolish It, New Republic: The Soapbox (Oct. 6, 2021), https://newrepublic.com/article/163875/supreme-court-icwa-tribal-sovereignty.
105. . See Brief for the Federal Parties, supra note 99, at 8.
106. . Id. at 73.
107. . Brief for Petitioner the State of Texas, supra note 99; Brief for Individual Petitioners, supra note 99; see also Ford, supra note 104.
108. . See Brief for Petitioner the State of Texas, supra note 99, at 11; Brief for Individual Petitioners, supra note 99, at 37–45.
109. . Brief for Petitioner the State of Texas, supra note 99, at 14.
110. . Brief of 497 Indian Tribes & 62 Tribal & Indian Orgs. as Amici Curiae in Support of Federal & Tribal Defendants, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, 21-380 (U.S. Aug. 19, 2022).
111. . Brief for the States of California et al. as Amici Curiae in Support of the Federal & Tribal Parties, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, 21-380 (U.S. Aug. 19, 2022).
112. . Brief for 87 Members of Congress as Amici Curiae in Support of Federal & Tribal Defendants, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, 21-380 (U.S. Aug. 2022).
113. . Brief of Casey Family Programs & Twenty-Six Other Child Welfare & Adoption Organizations as Amici Curiae in Support of Federal & Tribal Defendants, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, 21-380 (U.S. Aug. 19, 2022).
114. . Brief of 497 Indian Tribes & 62 Tribal & Indian Orgs. as Amici Curiae in Support of Federal & Tribal Defendants, supra note 110.
115. . Brief for the States of California et al. as Amici Curiae in Support of the Federal & Tribal Parties, supra note 111, at 4 (capitalization removed). States that joined California include Arizona, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, Washington, and Wisconsin. Id.
116. . See Mich. A.G. Nessel Joins Bipartisan Coalition in Defense of Indian Child Welfare Act Protections Before the U.S. Supreme Court, Targeted News Serv. (Oct. 19, 2021), https://www.proquest.com/docview/2582985790; Brief for the States of California et al. as Amici Curiae in Support of the Federal & Tribal Parties, supra note 111.
117. . Brief of Casey Family Programs & Twenty-Six Other Child Welfare & Adoption Organizations as Amici Curiae in Support of Federal & Tribal Defendants, supra note 113, at 18 (capitalization removed).
118. . Nancy Marie Spears, The Fate of Indian Child Welfare Before the Supreme Court, Imprint (Nov. 8, 2022), https://www.nhonews.com/news/2022/nov/08/fate-indian-child-welfare-supreme-court/ (quoting federal Indigenous law scholar Kate Fort).
119. . Ford, supra note 104 (quoting Rebecca Nagle, host of This Land); Noah Y. Kim, Understanding the Battle over the Indian Child Welfare Act, PolitiFact (Nov. 1, 2021), https://www.politifact.com/article/2021/nov/01/understanding-battle-over-indian-child-welfare-act/ (“Laws in danger of being overturned include the Major Crimes Act, which establishes the role that the federal government plays in law enforcement on Native land, Environmental Protection Agency policies that allow some tribes to ensure that the oil and gas industry adheres to environmental regulations, and federal programs that provide services like welfare or health care to Native Americans.”). It is well-settled law that tribes are political entities, not racial groups. See, e.g., Morton v. Mancari, 417 U.S. 535, 554 (1974); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 479–80 (1976); Washington v. Confederated Bands & Tribes of the Yakima Nation, 447 U.S. 134, 152 (1980).
120. . Ford, supra note 104.
121. . Brief for Individual Petitioners, supra note 99, at 28–37.
122. . Rebecca Nagle, The Supreme Court Case That Could Break Native American Sovereignty, Atlantic (Nov. 8, 2022), https://www.theatlantic.com/ideas/archive/2022/11/scotus-native-american-sovereignty-brackeen-v-haaland/672038/.
123. . Id.
124. . Ford, supra note 104.
125. . 140 S. Ct. 2452 (2020).
126. . Kim, supra note 119.
127. . Brackeen v. Haaland, 994 F.3d 249, 268 (5th Cir. 2021) (en banc) (per curiam opinion), cert. granted sub nom. Cherokee Nation v. Brackeen, 142 S. Ct. 1204 (2022), and cert. granted, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 142 S. Ct. 1205 (2022), and cert. granted, 142 S. Ct. 1205 (2022); id. at 404–06.
128. . Kim, supra note 119 (citation omitted).
129. . Setting the Record Straight: The Indian Child Welfare Act Fact Sheet, supra note 58.
130. . Ford, supra note 104; see Brief for Individual Petitioners, supra note 99, at 42.
131. . Setting the Record Straight: The Indian Child Welfare Act Fact Sheet, supra note 58.
132. . 25 U.S.C. § 1902.