Abstract

Excerpted From: Rachel Yost, The Indian Child Welfare Act, Political Classification of “Indians,” and Preservation of Tribal Sovereignty: Children, the Most Precious Resource, 48 American Indian Law Review 43 (2023-2024) (207 Footnotes) (Full Document)

Throughout the United States' history, Congress has consistently regulated Indian affairs as a matter of tribal political sovereignty, not as a matter of race. The Constitution itself enforces the use of political classification for Indians through Congress' power to “regulate Commerce,” and “make Treaties” with Indian tribes. Furthermore, the Supreme Court of the United States has also enforced the use of political classification for Indians through decades of case law. In United States v. Antelope, the Supreme Court unambiguously held that “federal legislation with respect to Indian tribes, although relating to Indians as such, is not based upon impermissible racial classifications.” If the Supreme Court unexpectedly overturns centuries of precedent, declares that “Indian” is a racial classification subject to strict scrutiny review, and finds the Indian Child Welfare Act (ICWA) unconstitutional, the effect will wreak havoc on tribal sovereignty and potentially extinguish the field of federal Indian law.

As of writing this Note, three separate families want to adopt Indian children and currently are unable to do so either due to the child's respective tribe or ICWA. Each family brought its own lawsuit to adopt the respective child and conquer ICWA. Two provisions of ICWA are being challenged on equal protection grounds that they are classified on a racial, not political, basis. Since the challenged provisions are “political rather than racial in nature,” they are subject to the rational basis standard of review. ICWA indisputably satisfies rational basis review because the “special treatment” it provides to Indian tribes and their children is rationally tied to “Congress' unique obligation towards the Indians.” ICWA is the “gold standard” for child welfare proceedings and thus, deserves strong protection to remain in force and safeguard Indian children that fall within the Act's application.

The three families and other plaintiffs obtained a writ of certiorari to come before the Supreme Court and challenge the constitutionality of ICWA. If ICWA is found unconstitutional and overturned, the states would once again be able to indiscriminately remove Indian children from their families and Indian communities. The removal of Indian children deprives tribes of future generations and creates a dangerous predicament for tribal sovereignty.

ICWA is constitutional because it is based on the political classification of “Indians.” That political classification subjects the Act to rational basis review, which it easily satisfies. Part II will discuss the history of federal Indian law and dive into the political classification of “Indians.” Part III will briefly summarize the factual and procedural set up of Brackeen v. Haaland. Part IV will give an overview of the Fifth Circuit Court of Appeal's decision in Brackeen v. Haaland. Part V will provide a narrow analysis of the Fifth Circuit Court's decision in Brackeen v. Haaland considering ICWA's severability and the Indian Canons of Construction. Part VI will give an overview of the Supreme Court's 2023 decision in Haaland v. Brackeen. Part VII will summarize the important contents of this Note.

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Children are inherent to tribal self-determination and existence. ICWA has succeeded in ending the arbitrary removal of Indian children from their families and heritage by actively keeping Indian children within Indian communities. However, without ICWA, states would once again be able to strip Indian children away at unproportionally high rates to destroy tribal sovereignty. ICWA should be upheld and maintained because it is based on the political classification of “Indian” which subjects the Act to rational basis review. Further, ICWA easily satisfies rational basis review because it is rationally tied to the fulfillment of Congress' unique obligation toward the Indians and is thus constitutional. Conversely, if ICWA is subject to strict scrutiny, ICWA will still be constitutional because it is narrowly tailored to further its compelling interests in protecting Indian children and federally recognized Indian tribes. However, if the Supreme Court unexpectedly finds “Indian” to be a racial classification, then the entire basis for the government-to-government relationship between the Indian tribes and the United States will be called into question potentially unraveling the entire field of federal Indian law. ICWA, Indian children, and tribal sovereignty warrant vigorous protection:

The Indian plays much the same role in our American society that the Jew played in Germany. Like the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.

J.D. 2024, the University of Oklahoma College of Law. Enrolled Member, Choctaw Nation of Oklahoma.