April 7, 2021
By Timothy Sandefur

In a long (300+ pages!) and divided opinion, the Fifth Circuit Court of Appeals late Tuesday upheld a federal district court ruling that found the Indian Child Welfare Act (ICWA) unconstitutional on a variety of legal grounds. Although the court also overturned important parts of the trial court’s decision, the ruling signals a major victory for Native American children who are denied crucial legal protections thanks to ICWA. We filed several briefs in support of the plaintiffs in the case.

Passed in 1978, ICWA was intended to redress wrongful actions by state and federal agencies that often took Native children away from their families without good reason. But despite these good intentions, ICWA today often stands in the way of Native parents and of state child welfare agencies that are trying to protect Native kids from abuse and neglect. And because ICWA applies to “Indian children”—which it defines based on biology—it violates constitutional rules that prohibit the government from discriminating based on race.

ICWA also intrudes on the authority of states in unconstitutional ways. Unlike other federal Indian laws, ICWA applies to children based on their biological ancestry, regardless of where they live, and even if those kids are not tribal members. And it forces state officials to obey a separate, less protective set of rules even when applying state child-safety laws. This means “Indian children” must be more abused and for longer before state child protection agencies can come to their aid. And ICWA effectively prohibits the adoption of Indian children by adults of other races, even where birth parents agree to the adoption. ICWA even bars Native parents from taking the steps necessary to protect their own children.

In Tuesday’s decision, in a case called Brackeen, the Fifth Circuit was equally divided on a number of important constitutional issues, resulting in a complex set of decisions that in important respects upheld a 2018 trial court decision that declared ICWA unconstitutional. When such equal divisions happen, the result is a “non-precedential” ruling that upholds the trial court’s decision but doesn’t establish a rule for future cases. Here, the court was equally divided on some issues, but found common ground on others.

First, the bad news. The majority of the court held that Congress had power to adopt ICWA under the Constitution’s “commerce clause,” and that the fact that ICWA is triggered by a child’s biological ancestry does not violate constitutional rules against racial discrimination. In the process of making this ruling, the court expanded the reach of federal Indian laws in some truly astonishing ways, which I’ll discuss more below. It also held that the fact that ICWA allows tribes to write rules that override state law does not violate the “nondelegation doctrine” (a legal theory that bars Congress from giving lawmaking authority to private entities). And it addressed several other important legal issues too complex to get into here.

But the judges were unable to agree on whether two other provisions of ICWA are constitutional. These are rules that require that Indian children be adopted by “other Indian families” instead of adults of other races, and that require Indian children in foster care to be placed in “Indian” foster homes, regardless of tribal differences. Since the judges couldn’t agree on those points, the trial court ruling declaring these parts of ICWA unconstitutional remains in place.

And the judges did agree that several other ICWA provisions, which impose various burdens on state officials, violate the “anti-commandeering” rule, a rule that forbids the federal government from commanding states to act in certain ways. These provisions include ICWA’s “active efforts” requirement, which bars states from terminating the rights of abusive parents unless child welfare officials first prove that they’ve made “active efforts” to return the children to those parents. In other words, ICWA requires state child welfare agencies to send abused and neglected Indian children back to homes they know to be harmful—a requirement not imposed on children of any other race. The court found that unconstitutional.

It also found unconstitutional a provision that requires states to get testimony from expert witnesses to prove that a child faces severe risk before that child can be rescued from an abusive family—a burden so severe as to leave Indian children in harm’s way, when children of other races would be protected. The court found that Congress exceeded its authority by forcing states to comply with this rule.

The judges failed to reach any agreement on various other provisions. Perhaps most significantly, they differed over whether the Constitution is violated by parts of ICWA that require Indian children to be adopted by “other Indian families” instead of adults of other races, or that require that Indian children in foster care be placed in foster homes approved by an “Indian tribe.” Under these provisions, a child of, say, Apache ancestry must be placed with a family of, say, Navajo or Choctaw ancestry, despite the drastic cultural and historical differences between these tribes. The reason for this bizarre requirement is that ICWA is not actually based on tribal affiliation, but on race—the Act imposes a concept of “generic Indianness,” which is a racial, not a tribal or cultural or political concept. Because the court was unable to reach a decision on this issue, the trial court’s ruling striking down these provisions of ICWA remains in place.

Whatever its complexities and disappointments, the decision is a major, if limited, victory for Indian children, who, thanks to ICWA, are denied the legal rights that children of other races enjoy. Remarkably, this 40-year-old federal law has only been addressed by the Supreme Court twice, in decisions that did not discuss most of these weighty constitutional questions. That the Fifth Circuit’s opinion resulted in such long, detailed, and serious consideration of these matters is a major step forward—as is the increased likelihood that the Supreme Court will take up this case.

The downside, of course, is that the Fifth Circuit’s decision wrongly concludes that ICWA—which is premised on a child’s genetic ancestry, rather than on his or her political or social affiliation with an Indian tribe—fits within the precedent of Morton v. Mancari, a Supreme Court decision that said Congress can treat Native Americans differently than others without violating the rules against racial discrimination. In reaching that conclusion, the Fifth Circuit adopted an extraordinarily broad interpretation of Mancari, which in principle would allow Congress to deprive Americans of their constitutional rights virtually without limit so long as doing so is “reasonably related to the special government-to-government political relationship between the United States and the Indian tribes.”

In other words, the Fifth Circuit concluded that Congress can do virtually whatever it thinks will aid “the survival of tribes” as institutions, regardless of the impact on the rights of individuals. In fact, the decision goes even further than that: It concludes that anything Congress does that is “related” to what it calls the “government-to-government political relationship” passes muster, even if it is “not…specifically directed at Indian self-government.” What would be the limit on such power? The Fifth Circuit does not say. Could Congress prohibit (or empower tribal governments to prohibit) women of Native ancestry from obtaining divorces? Or from marrying outside of the tribe? Or from surrendering their tribal membership? The court never says. Perhaps such rules would violate due process, but such a conclusion would require fashioning a due process doctrine to replace the equal protection doctrine that the Fifth Circuit in this case is at pains to deny. (And since this case involves only federal law, it’s all a form of due process anyway.) The truly extreme scope of the Fifth Circuit’s interpretation of Mancari—an eight-page decision about employment policies at the Bureau of Indian Affairs and which the Supreme Court has called “limited”—is a good indicator of how far out on a limb ICWA’s constitutionality really is.

Given the extreme length and complexity of the decision, it seems likely that the Brackeen case is a good candidate for U.S. Supreme Court review. It is well past time that Native children were given the same legal protections against abuse and neglect that children of other races enjoy.

Learn more about ICWA here and here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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