STANDING MATTERS: BRACKEEN, ARTICLE III, AND THE LURE OF THE MERITS.

• Author: Atwood, Barbara Ann

The Supreme Court's grant of certiorari in Brackeen v. Haaland and consolidated petitions (1) marks only the third time that the Court has taken up a case arising under the Indian Child Welfare Act of 1978 (ICWA). (2) From its inception in the Northern District of Texas to the Fifth Circuit's en banc decision, the litigation has been closely watched, not only because the constitutionality of ICWA and regulations promulgated in 2016 (the "Final Rule") are at issue but because foundational principles of federal Indian law (3) hang in the balance. Indeed, in Brackeen the Court is being asked to revisit the scope of congressional power under the Indian Commerce Clause; the constraints, if any, imposed by the Tenth Amendment in the exercise of that power; and the equal protection standard of review for laws based on tribal membership. (4)

But before the Court reaches the substantive questions in Brackeen, it must address a thicket of Article III justiciability issues. The litigation in Brackeen at the trial court and on appeal has required judges to delve deeply into whether the plaintiffs (three sovereign states and seven individuals) have established a concrete and present injury traceable to the defendants' challenged conduct and whether a ruling on the merits would redress their claimed injury. Although the en banc court unanimously concluded that at least one plaintiff had established standing to challenge Congress's authority to enact ICWA and the validity of the Final Rule, the court was divided on other standing issues, with a majority concluding that the plaintiffs had standing to challenge ICWA on equal protection grounds. (5) At the same time, dissenting judges vehemently disagreed with the recognition of standing to press equal protection claims and suggested that their colleagues had disregarded the requirements of Article III in their eagerness to reach the merits. (6)

Rather than add to the extensive literature defending ICWA's constitutionality, (7) this Article focuses on the justiciability questions presented in Brackeen. Part I provides a brief overview of ICWA and the Supreme Court's two prior decisions, with an emphasis on those aspects of the Act and Final Rule that are at issue in Brackeen. Part II reviews the twists and turns of the Brackeen litigation and the pivotal rulings on standing that have kept alive the plaintiffs' broad-based constitutional challenges. The sweeping scope of the Fifth Circuit's en banc decision, a tome of over 200 pages, has provided the Supreme Court with an open canvas--driven home by the Court's grant of certiorari on all four petitions. Part III offers thoughts about the challenging justiciability issues the Court must resolve before reaching the merits.

The Court's rulings on Article III standing in Brackeen will determine the scope of the substantive holdings. The question most in dispute is whether plaintiffs have standing to challenge ICWA on equal protection grounds under the Fifth Amendment. Determinations of standing, of course, are always a prerequisite to the exercise of federal court jurisdiction, but Brackeen's unique tangle of individual and state claimants asserting diverse constitutional and statutory claims complicates the standing inquiry. Also, some members of the Court have already made known their receptivity to arguments that ICWA's heightened procedural protections for parents of Indian children may raise equal protection concerns, (8) and one Justice has opined at length that Congress lacked power to enact ICWA in the first place. (9) If the desire to reach the merits of the constitutional claims drives the Justices' resolution of the standing questions, the decision in Brackeen could profoundly unsettle federal Indian law.

1. OVERVIEW OF THE INDIAN CHILD WELFARE ACT AND THE 2016 REGULATIONS

   1. ICWA

      Congress enacted ICWA in response to a brutal history of abusive boarding school practices and unwarranted and biased child welfare removals that led to the separation of an extraordinarily high percentage of American Indian children from their families and communities. (10) Senate oversight hearings in the 1970s documented the catastrophic impact of federal and state governmental policies that were aimed at the elimination of Native culture and the forced assimilation of Indian children into the broader society. (11)

      According to surveys conducted by the Association on American Indian Affairs, 25% to 35% of all American Indian children had been separated from their families and placed in predominantly white foster and adoptive homes or institutions. (12) Much of the testimony during the hearings focused on the undeniable harm to Indian children and families perpetrated by state child welfare authorities (13) and by the Bureau of Indian Affairs (BIA) and affiliated religious entities through a network of militaristic boarding schools. (14) Equally important, Congress heard compelling evidence that the very survival of tribes was at stake since children were the "only means of transmission of tribal heritage." (15)

      Relying on the federal government's trust responsibility toward tribes and plenary congressional power over Indian affairs, (16) Congress crafted ICWA to directly address the history of rampant child welfare abuses. As stated in the Act, federal policy includes not only the protection of the "best interests of Indian children" but also the promotion of "the stability and security of Indian tribes and families." (17) Thus, the goal of protecting Indian children and families is coupled with the goal of ensuring the survival of tribes, and that dual focus is a key foundation for congressional power--a point of contention in Brackeen.

      While Congress employed jurisdictional, procedural, and substantive mechanisms in ICWA to achieve its goals, the heightened procedural protections and substantive placement preferences are the focus of the Brackeen litigation. The Act defines "Indian child" as any unmarried person under the age of 18 who is either a member of a federally recognized tribe or is eligible for tribal membership and is the biological child of a member. (18) Thus, the applicability of the Act turns on tribal membership or eligibility for membership--a statutory requirement mischaracterized as "racial" by the plaintiffs in Brackeen. Under long-established principles, federal laws affecting tribal relations that depend on tribal membership are deemed to be based on political association rather than race. (19) In Morton v. Mancari, a key precedent on this issue, the Supreme Court upheld a hiring preference within the BIA for tribal members with one-fourth or more degree of Indian blood. (20) Rejecting an equal protection challenge, the Court reasoned that the hiring preference was "granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion." (21) Under ICWA, similarly, Congress was legislating to protect Indian children and promote the survival of tribes and tribal culture and thus required a nexus of tribal membership or eligibility for membership coupled with membership of a biological parent. (22)

      As reflected in the Brackeen litigation, the Act extends to involuntary child welfare proceedings involving state intervention into the family as well as voluntary relinquishments by parents. (23) In deference to the sovereign authority of tribes, the Act recognizes exclusive tribal jurisdiction over child custody proceedings involving an Indian child who resides or is domiciled within the tribe's reservation or is a ward of the tribal court, a jurisdictional premise that comports with pre-ICWA case law. (24) In cases within concurrent state/tribal jurisdiction, ICWA provides the option of transfer to tribal court on petition by either parent, Indian custodian, or tribe. (25) Sometimes characterized as "presumptive[] tribal jurisdiction," (26) transfer requests must be granted unless a parent objects or there is "good cause" to the contrary, a term Congress chose not to define in the Act. (27)

      Although tribal jurisdiction is not challenged in Brackeen, the Supreme Court's reasoning in Mississippi Band of Choctaw Indians v. Holyfield, where exclusive tribal jurisdiction was at issue, supports the recognition of congressional power to enact ICWA. In Holyfield, the Court ruled that the adoption of twin Choctaw infants by a non-Indian couple in Mississippi state court was void because the infants, while never physically present on the Choctaw reservation, were deemed to have the same reservation domicile as their Choctaw birth mother at the time of the adoption. (28) Over a dissent that would have given more weight to parental autonomy, (29) the majority emphasized that ICWA was "not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians." (30) The Court's robust endorsement of ICWA's jurisdictional provisions and underlying policies stands in stark contrast with the skepticism, if not hostility, toward ICWA expressed almost 25 years later in Adoptive Couple v. Baby Girl. (31)

      As most Native families reside off reservation, (32) ICWA's predominant implementation is through state courts and state child welfare systems, a reality driven home by the Brackeen litigation. In light of the history of child welfare abuses, Congress mandated significant procedural protections for parents of Indian children and for tribes. These include the rights of intervention, (33) detailed notice requirements, (34) court-appointed counsel, (35) and access to evidence. (36) ICWA, in addition, imposes increased evidentiary requirements and heightened burdens of proof that have been targeted in Brackeen as unconstitutional "commandeering." Under the Act, any party--whether state or private--seeking foster care...