The U.S. Supreme Court will hear arguments concerning the Indian Child Welfare Act on Nov. 9. ICWA is a federal law introduced by South Dakota’s U.S. Senator James Abourezk 45 years ago and passed by Congress in 1978.
Under ICWA, Native children removed from their homes are placed with relatives, their tribe, or other Native families. The purpose is to keep children close to their own heritage and to protect the continued autonomy of tribal nations. The Fifth Circuit Court of Appeals issued a 325-page opinion last year that upheld some aspects of the federal law and found other aspects unconstitutional. Both sides now challenge that opinion.
When the en banc Fifth Circuit Court of Appeals heard arguments on Jan. 22, 2020, some of it was emotional, pleading the case for loving non-Indian people to be able to foster or adopt Native children.
Matthew McGill told stories of Native children and foster families bonding and then being torn apart.
“My clients opened their hearts and their homes to a child in need and embraced that child as a part of their family,” McGill told justices. “They are here because the Indian Child Welfare Act’s placement preferences turned their lives and their families upside down, solely because the child they took in is an Indian child, and they are not, and cannot be, because of their race, Indian families.”
McGill represents three couples and an individual whose attempts to foster or adopt Native children were thwarted by ICWA. He argued that ICWA violates non-Indians’ constitutional guarantees of equal protection.
“There is no other provision of Title 25 that directly disadvantages non-Indians in a state proceeding in the way that ICWA does,” he said. “There’s nothing that even comes close. It is a direct disadvantage placed on non-Indians in state affairs that are of the utmost importance to these people.”
McGill gave as an example the case of Jason and Danielle Clifford, a Minnesota couple who wanted to adopt their Native foster child, known as “Child P.”
“These families, the Cliffords’ family, literally was torn apart, as Child P was pried out of their arms because she was an Indian child,” McGill said.
The Cliffords are included in this appeal before the Supreme Court.
As with any court case, there are at least two sides to the story.
In this case, the side opposing ICWA includes the State of Texas and Chad Brackeen and his wife, Jennifer, as well as other states and other non-Indian couples.
On the side supporting ICWA are Secretary of the Interior Deb Haaland, other federal agencies, and Indian tribes.
Those are the parties who will make arguments in person before the nine justices of the Supreme Court.
But various other sides come into play in a long list of amicus curiae (“friend of the court”) briefs, filed by various people or organizations weighing in favor of one party or the other. Justices can consider these statements and give them whatever weight they feel they merit.
The maternal grandmother of Child P is represented in this way. In her amicus brief, Robyn Bradshaw, a registered member of the White Earth Band of the Ojibwe Tribe, outlines her battle to hang onto custody of her granddaughter. She eventually succeeded.
She notes that that the Cliffords’ attempts to adopt her granddaughter was “aggressively litigated” in the state of Minnesota, and they should not have another shot in this forum.
Some briefs, like the one filed by 497 tribes and 62 tribal and Indian organizations, say ICWA protects Native children’s wellbeing and the preservation of tribal nations.
Casey Family Programs filed to support ICWA, noting that the focus in child welfare has shifted to strengthening families, rather than “child rescue.”
And then there are those who look at the Constitutional issues.
One brief in support of ICWA was submitted by 24 Attorneys General, including South Dakota Attorney General Mark Vargo and Attorney General Keith Ellison of Minnesota, where the Cliffords’ battle to adopt Child P played out in the courts and in the news media for years.
Another group in support of ICWA is Administrative Law and Constitutional Law Professors, represented by Dallas attorney David Coale.
“There have been treaties made with Indian nations requiring certain commitments for taking care of children, the welfare of families,” Coale said in an interview with SDPB. “And pursuant to those treaties, Congress has enacted ICWA as something necessary and proper to carrying out the goals of those treaties.”
That “necessary and proper” language is found in the Constitution, as is Congress’s power to enter into treaties. And Coale said those powers, in combination with the Indian Commerce clause, uphold ICWA.
But he said the “necessary and proper” language, historically interpreted broadly as allowing Congress to take measures to fulfill its constitutional duties, is now being challenged.
“And this ICWA is one of the relatively few cases to come back to the court to say, ‘Hey, wait a minute. Maybe we should put some limits on the necessary and proper clause.’ And that’s a big issue,” Coale said.
At oral arguments before the Fifth Circuit, former Texas Solicitor General Kyle Hawkins represented the states. He told appellate judges that the Constitution does not give Congress the power to regulate domestic relations.
“But even if it did,” Hawkins said, “Congress must wield that power consistent with the anticommandeering doctrine of the 10th Amendment and the non-delegation doctrine of Article I. ICWA is the rare federal statute that violates both anticommandeering and nondelegation principles.”
Hawkins argued that state agencies such as courts and social services are “commandeered,” forced to tailor their services to fulfill the demands of ICWA.
At Fifth Circuit oral arguments, Matthew McGill, the lawyer representing the non-Indian couples, agreed and said ICWA creates unconstitutional racial considerations.
“When Congress is regulating the internal affairs of an Indian tribe, it’s obviously political,” he said. “But when it’s regulating state affairs, it’s not any longer political. It operates in that domain as a racial classification. And the reason why, is that when you are in the realm of state affairs, you are implicating, almost by necessity, the rights of non-Indians.”
How the Supreme Court will decide these issues is hard to predict.
Attorney David Coale said ultimately the question has to do with the Constitution’s grant of power to Congress and how far the necessary and proper clause allows Congress to act in furtherance of those powers.
“There’s a reason the Constitution fits in something small enough that you can put it in your jacket pocket,” he said. “They weren’t trying to draft a civil code like France has, that has every single conceivable thing written down in it. They were drafting a broad outline, and a broad outline of a political system.”
Coale said the Constitution leaves open-ended directions, such as the necessary and proper clause, to be applied when new situations arise.
“This business about ‘It’s not in the Constitution, so it just isn’t there’… There’s a point to that, there’s a valid force to that kind of argument, but at some point, though, you have to say, ‘Okay, get real,’” Coale laughs. “It was 1790. They weren’t pretending to have an exhaustive list for 250 years in the future. They weren’t that arrogant.”
When the Supreme Court hears arguments on Nov. 9, the justices will likely flesh out these issues with the questions they ask. But until the high court issues an opinion sometime before June 2023, the outcome of this case remains uncertain.
