Abstract

Excerpted From: Lawrence J. Altman, US Supreme Court's June 2023 Ruling Concludes Indian Child Welfare Act of 1978 Is Constitutional, 80 Journal of the Missouri Bar 42 (November-December, 2024) (52 Footnotes) (Full Document)

In June 2023, the U.S. Supreme Court issued a ruling in Haaland, Secretary of the Interior v. Brackeen that discussed Native Americans' rights under the Indian Child Welfare Act of 1978 (ICWA). This federal law determines the rights of Native American tribes regarding the placement of Native American children who are put up for adoption or placed in foster care. The plaintiffs in this case challenged Congress' authority to enact the ICWA and asked that the Court strike down the ICWA as unconstitutional and issue a restraining order against the U.S. Secretary of the Interior preventing the secretary from enforcing the ICWA. Holding that Congress did not exceed its authority under the Constitution when enacting the ICWA, and that the ICWA did not violate the Constitution, the Court denied the plaintiffs' request for a restraining order.

Justice Amy Coney Barrett wrote the majority opinion in Haaland, describing the history that led to the enactment of the ICWA, and Justice Neil Gorsuch added a concurring opinion to provide additional historical information. This article will discuss Gorsuch's historical narrative in support of the ruling, Barrett's reasons for upholding the ICWA, and the claim that the ICWA violates the equal protection clause in light of the Supreme Court's ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

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At least for now, the Supreme Court upheld the ICWA and ruled it withstood all constitutional challenges it elected to rule upon. That said, Barrett and Kavanaugh left the door open for a further challenge to the ICWA for those who have standing to claim the ICWA violates the equal protection clause of the 14th Amendment. The ICWA does provide an advantage to one race: Native Americans when Native American children are to be placed in foster care or could be adopted. Accordingly, the question remains unanswered of whether the ICWA should be set aside because it violates the equal protection clause in accordance with the Supreme Court's ruling in Students for Fair Admissions.

Yet there are compelling reasons to conclude that the ICWA does not violate the Supreme Court mandate. First, affirmative action for school admissions is not specially mandated by any federal statute. Also, unlike the facts in Students for Fair Admissions, there was a critical reason beside race as to why Congress enacted the ICWA: Prevention of the extinction of all Native Americans. Congress was given authority under Article 1, § 8, Clause 3 of the United States Constitution. By including that article, the founders gave Congress the exclusive power and authority to work with Native American tribes. Using that power and authority, Congress enacted the ICWA. Further, as Congress said when it enacted the ICWA: “[T]here is no resource ... more vital to the ... tribes than their children.”

Accordingly, any attempt to lessen Congress' authority to enact and enforce the ICWA would not be consistent with the intent of the founders and would be an illegal usurpation of the constitutional authority given to the Congress.

Lawrence J. Altman is an adjunct professor at Avila University in Kansas City.