Oral arguments were heard Wednesday, Nov. 9, in a case that threatens a 44-year-old federal law giving preference to Native American families in foster care and adoption proceedings of Native children.
The U.S. Supreme Court is pondering Brackeen v. Haaland, a lawsuit that seeks to undo the 1978 Indian Child Welfare Act (ICWA), which was meant to counteract the lopsided rate at which Native American and Alaska Native children were taken from their homes by public and private agencies.
Dorsey and Whitney partner Ben Kappelman is watching the case closely. Although his main practice is intellectual property, Kappelman also frequently works on federal Indian law issues.
The law requires states to notify tribes and seek placement with the child’s extended family, members of the child’s tribe or other Native American families. Three white families, along with Texas and some other states, have sued, claiming the law is based on race and is unconstitutional under the equal protection clause. Lower courts have been divided on the case.
Prior to ICWA, between one-quarter and one-third of Native American children being taken from their homes and placed with adoptive families, in foster care or in institutions. Most were placed with white families, and sometimes in boarding schools, in order to assimilate them.
After Wednesday’s oral arguments, Kappelman saw a mixture of empathy and skepticism from the justices on the nation’s highest court.
“I’m not a Supreme Court vote counter, but I did not hear five justices suggesting that they would uphold ICWA,” he said. “I heard four, but it’s going to be a nervous wait for those of us who represent tribes.”
He said that Chief Justice John Roberts didn’t have many questions for either side’s attorneys, but that he’s known to be skeptical about potentially impermissible race-based classifications. The wild cards on the court might be Amy Coney Barrett and Brett Kavanaugh, neither of whom were justices when the Supreme Court decided an ICWA-related case.
“One issue that got a lot of play was the question of whether Congress exceeded its constitutional authority in enacting this statute,” said Kappelman.
“The reason there was so much discussion about Congress’s authority over Indian Country is that, although striking down ICWA based on that reasoning would be a bad outcome for tribes and for Native American children, it wouldn’t necessarily lead to the wholesale invalidation of the entire relationship between the federal government and tribal nations.”
The case’s origin was in an adoption petition filed by Chad and Jennifer Brackeen. After their petition was challenged by the Navajo Tribe, the Brackeens brought suit in the U.S. District Court in Fort Worth, Texas. The U.S. District Court declared that the ICWA was unconstitutional and the case was appealed.
In 2019, a three-judge federal appeals court panel voted to reverse the district court and uphold the law. The full court then agreed to hear the case and struck down some of its provisions, such as preferences for placing Native children with Native adoptive families and in Native foster homes. The panel did, though, uphold the determination that the law is based on the political relationship between the tribes and the U.S. government, not race.
Most of the 574 federally recognized tribes and tribal organizations have asked the Supreme Court to uphold ICWA in full, along with tribal organizations. Also, about two dozen state attorneys general across the political spectrum filed a brief in support of the law. Some of those states have codified the federal law into their own state laws.
Tribes say that dismantling ICWA will lead to more widespread attempts to strip away their ability to govern themselves. Supporters of the law say that longstanding Supreme Court precedent permits Congress to implement ICWA’s preferences, which rely on tribal political affiliation and not race
“This is an all-out nuclear war attack on ICWA,” Mary Kathryn Nagle, a Cherokee attorney for the National Indigenous Women’s Resource Center, told the Associated Press. Her group filed a brief in support of the law. “The law has been on the books for 44 years, and this is the first time the constitutionality of the law has been challenged. This is unprecedented.”
Because the Supreme Court tends to hold off on controversial decisions until spring or summer, Kappelman anticipates that if a majority of justices can emerge around a narrow ruling, a decision about Brackeen v. Haaland might come fairly soon.
“There are a couple of paths to either upholding ICWA or striking it down in a small way,” he said. “If one of those is adopted, it shouldn’t take the court long to make a decision.”