Competing rights and interests.

AuthorHerman, Gregg
PositionBrackeen v. Haaland

Byline: GREGG HERMAN

On Nov. 6, the United States Supreme Court heard oral arguments in Brackeen v. Haaland, a case which presented numerous constitutional and legislative issues regarding the Indian Child Welfare Act or ICWA.

The case presents some incredibly difficult legal and public policy issues. How difficult? In 2012, the late Justice Antonin Scalia called a dispute arising from the adoption of Native American twins the most difficult case he ever had during his time on the Supreme Court.

The ICWA was passed by Congress and became law at a time when as many as one-third of all Indigenous children were taken from their homes. The vast majority were sent to live with white families or in residential boarding schools. The ICWA grants tribal children the right to foster care placements that favor members of their communities and kin.

The Brackeen case involves three white adoptive couples and the state of Texas, both challenging the constitutionality of the ICWA on multiple grounds. Texas argues that ICWA has not achieved its stated ends of improving stability and security among Indian tribes and that Native American children covered by ICWA remain at a greater risk for abuse and neglect than other children.

Another issue in the case is whether ICWA violates the Constitution's guarantee of equal protection, which generally bars the government from discriminating based on race, gender or ethnicity. The Biden administration and the tribes contend that the distinctions that ICWA draws are purely political that is, based on membership in a tribe or a close connection to a tribe. As a result, they argue, the statute is subject to a less stringent constitutional test, which requires only a rational relationship between the law and Congress's duty to Native Americans. Texas and the individual plaintiffs, on the other hand, insist that ICWA draws distinctions, for both Native American children and would-be adoptive parents based on race, rather than politics as evidenced by the fact that ICWA "applies even when a...

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