As another blockbuster term wraps up for the Supreme Court of the United States (SCOTUS), I want to focus on one issue on which there has been substantial state and federal litigation: the Indian Child Welfare Act (ICWA). I have written about it several times and address it again, here.
I want to begin by addressing why this column has spent so much time on the ICWA when SCOTUS and the Colorado Supreme Court have done so much on so many issues: it is important.
Congress passed the ICWA to stop the child welfare system from breaking up Indian[1] families. That history includes the use of Indian boarding schools as well as forced assimilation through the foster care system. The ICWA imposes heightened requirements on state and county child welfare departments when a child is an “Indian child.” Those requirements include a preference for placing Indian children with Indian families and additional efforts to reunify Indian families. The ICWA also requires that tribes be notified about Indian children involved in the child welfare system.
As this column has previously noted, several challenges to the statutory scheme made their way to SCOTUS this year in Haaland v. Brackeen. The challengers made three primary arguments: Article I of the Constitution did not allow Congress to pass the ICWA; the ICWA was an impermissible impingement on traditional state government functions (i.e., family and juvenile law) and thus violated “anti-commandeering” principles; and the ICWA violated the Equal Protection Clause by privileging Indian families over non-Indian families.
SCOTUS rejected all three challenges. In a 7-2 opinion authored by Justice Barrett, it rejected the first two on the merits, determining that Congress properly enacted the ICWA and that it did not violate anti-commandeering principles. On the third issue, the Court determined that no petitioner had standing to raise the argument under the Equal Protection Clause.
This opinion was a relief for parent advocates and supporters of Native rights more broadly. It wholly preserves the ICWA against challenges. While some may be concerned that the Court “punted” when it rejected the Equal Protection Clause challenge on standing or redressability, it is hard to read the opinions and the concurrences and count to five justices who would overturn the law on equal protection grounds, either. And that is of particular relief to Indian law practitioners, as the status of tribes as a political classification, rather than a racial one, is the basis of much of Indian law. Much of Indian law is rooted in the sovereignty of tribes to self-govern, and if that were a racial rather than a political classification, much of the legal landscape would change. Justice Gorsuch pointed this out at oral argument.[2]
So, the ICWA lives. And here in Colorado, we continue to litigate about it. The Colorado Supreme Court has recently heard several cases regarding the ICWA. Most recently, it heard People in Interest of A-J.A.B., a case about what happens when a parent says they have Indian heritage but does not provide much more information. What’s at stake there, big picture, is how robustly a county department of human services must investigate to determine if a family’s claim of Indian heritage triggers the ICWA. And how and when tribes will be involved in that process. While it seems like a small and technical procedural issue, when and how the ICWA is triggered ultimately determines how widely it will apply.