≡ Menu

Guest Post: SCOTUS leaves the Indian Child Welfare Act intact, for now

Haaland et al. v. Brackeen et al., USSC No. 21-376, 143 S.Ct. 1609 (June 15, 2023), affirming in part, reversing in part, and vacating and remanding 994 F.3d 249 (5th Cir. 2021); Scotusblog page (including links to briefs and commentary)

This is a guest post by Attorney Matthew Giesfeldt of the Madison Appellate office, who is also the SPD’s Family Defense Practice Coordinator.

The Indian Child Welfare Act, or “ICWA,” is a federal law enacted in response to concern that nontribal public and private agencies were removing Native American children from their homes to non-tribal placements at “an alarmingly high percentage[.]” Slip op. at 2. Wisconsin codified ICWA as state law in 2009. Wis. Stat. § 48.028. Under both the federal and state statutes, agencies that place children out of the home (such as local child-protection agencies) must adhere to stricter requirements to remove a tribal child than they must follow to remove a non-tribal child. For example, tribes may intervene in child placement cases, and agencies seeking to remove tribal children from tribal homes must engage in “active efforts” to help the parents and prevent the removal. Wis. Stat. § 48.028(4)(e)2.

In these consolidated cases, the biological parents and each foster parent couple seeking to adopt agreed that a tribal child should be adopted by nontribal parents, but a tribe intervened in opposition to the others’ plans. The parents filed a federal suit challenging ICWA, which three states joined. In one of the cases, the adoption was denied based upon the tribe’s intervening objection, though in the other two cases the tribe ultimately abandoned its objection, allowing the adoption to go through. Slip op. at 6-8.

The Court addressed four separate constitutional challenges to ICWA:

First, petitioners argued that ICWA is beyond the scope of Congress’s authority because it “treads on the States’ authority over family law.” Slip op. at 14-15. The Court rejected this claim, saying, “Petitioners are trying to turn a general observation (that Congress’s Article I powers rarely touch state family law) into a constitutional carveout (that family law is wholly exempt for federal regulation). That argument is a non-starter.” Slip op. at 15. Further, Congress has well-established and broad (if not absolute) power to enact laws with respect to Native Americans, and ICWA is within that ambit of power. Slip op. at 10-14, 15-17. (Justices Thomas and Alito dissent from this conclusion, concluding Congress doesn’t have the power to enact ICWA.)

Second, petitioners contended that certain ICWA provisions—especially those that impose stricter requirements on proceedings involving the removal of tribal children from the home—violate the anticommandeering principle. Petitioners focused on the “active efforts” provision that requires an offer of “remedial services and rehabilitative programs” to prevent the removal of a tribal child before an involuntary removal may occur. Slip op. at 18. The Court rejected this argument, for while the active-efforts requirement applies to states, it also applies to private parties seeking to remove a tribal child from the home. Slip op. at 19. “A demand that either public or private actors can satisfy is unlikely to require the use of sovereign power.” Slip op. at 19. As such, these provisions cannot be viewed as forcing a State’s hand. Slip op. at 19-20.

The Court did not address the petitioners’ third and fourth claims, “an equal protection challenge to ICWA’s placement preferences and a non-delegation challenge to the provision allowing tribes to alter placement preferences[,]” because “no party before the Court has standing to raise them.” Slip op. at 29. The Court denied standing because the relief sought—declaratory judgment and an injunction imposed on the federal secretary of the interior—would not assure that state courts, who implement ICWA’s provisions, would follow suit. An injunction against the federal parties would not enjoin the state courts handling the proceedings. Slip op. at 30. And while the petitioners claimed that “in the Brackeens ongoing efforts to adopt [their foster tribal child,] the trial court stated that it would follow the federal court’s ruling on the Brackeens’ constitutional claims,” the Court lacked the power to mandate such compliance. Slip op. at 31-32.

While a CHIPS or TPR defense attorney might read Haaland on its face as a clear defense win because it upholds a federal law that grants heightened protections against removal of tribal children from the home, the facts of the consolidated cases and the Court’s actual holdings are more nuanced.

In each of the three cases that led to this decision, all of the individuals agreed about what should happen to the tribal child: the fosters wanted to adopt, and the biological parents wanted to place their children in these specific foster homes. Yet, a tribe intervened to thwart the stated interest of the people involved. This demonstrates the importance of respecting a tribe’s position in any CHIPS or TPR case, for such position carries with it a great weight relevant to the outcome of the proceedings. And for now, this great weight remains.

But at the same time, the Court gave a roadmap to parties who want to mount future challenges to ICWA. To overcome the standing issue, for instance, “the individual petitioners can challenge ICWA’s constitutionality in state court, as the Brackeens have done in their adoption proceedings for [another Indian child].” Slip op., at 32, n. 10. CHIPS and TPR attorneys should be ready for corporation counsel, guardians ad litem, or others to raise in our state court proceedings the constitutional challenges to ICWA made by the petitioners in this case. Or, maybe our clients’ positions might merit a similar claim on their behalf. Thus, Haaland likely won’t be the last word on the validity of ICWA.

{ 0 comments… add one }

Leave a Comment