Brackeen v. Bernhard

February 5, 2019 • Legal Briefs
By Walter Olson, Timothy Sandefur, Ilya Shapiro, & Robert Henneke

The Indian Child Welfare Act (ICWA) gives tribal governments exceptional power over the fate of children who may or may not be tribal members, so long as they are “eligible” for such membership and have a tribal member as a parent. Although the law was originally intended to prevent the breakup of intact Native American families at the hands of state officials, ICWA now operates to delay or deny children of Native descent placement in otherwise suitable homes because of their race. The law makes it difficult for non‐​Native adults to adopt such children even in circumstances in which approval would otherwise be routine, while sometimes forcing child welfare officials to place abused and neglected children in households in which they are at serious risk of further harm.

Although tribes are legally permitted to use genetic criteria as qualifications for membership, the Fifth Amendment’s Due Process Clause forbids the federal government from discriminating on the basis of race or lineage. Yet ICWA explicitly imposes race‐​based restrictions on foster care and adoption. If Native children cannot be placed with relatives or members of the same tribe, it directs they be placed with “other Indian families” or in “Indian” institutions, regardless of tribe. It thus enforces a further racial classification that is both unusual and suspect, that of the “generic Indian,” one that disregards significant differences between tribes as well as the interests of individual children.

While engaging in this improper racial classification, ICWA also removes Native children from the benefit of protections that much of existing law otherwise deems important. For example, many states employ the “best interests of the child” standard, but the federal Bureau of Indian Affairs (BIA) and several state courts have declared that ICWA overrides it. But Congress does not have the constitutional authority to dictate what is in the best interests of all children in a single racial class, let alone to do so in a way that itself promotes racialized outcomes.

In addition, tribal courts do not provide all of the same protections available in state and federal courts, and subjecting American citizens living far from Indian country — both children and adoptive parents — to their vagaries, absent some indicia of consent to be thus governed, imperils their rights to due process and equal protection.

Similarly, ICWA disregards the longstanding “minimum contacts” rule that forbids judges from reaching across state or tribal borders to decide cases involving parties who lack a sufficient connection to the court’s jurisdiction, with no exception made for genetic ancestry. The Constitution does not contemplate that courts — tribal courts are no exception — will make binding judgments against parties that have no actual contacts or ties to their jurisdiction.

Together with the Goldwater Institute and the Texas Public Policy Foundation, Cato has filed an amicus brief in the Fifth Circuit on behalf of parent plaintiffs frustrated in a wish to adopt children of Native descent. We argue that the government may not treat American citizens differently based on whether their genetic ancestry would qualify them for tribal membership. Put simply, Native families are entitled to the same legal protections as families of all other races and lineages. For Congress to impose a racialized and non‐​neutral regime on parents and children is not only unwise and unfair, but unconstitutional.

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