Brackeen v. Bernhard

October 8, 2019 • Legal Briefs

The Indian Child Welfare Act strips basic constitutional rights any child who is racially classified as “Indian.” ICWA was initially created to prevent seizure of Native American children from their intact families by state actors. Modern‐​day applications, however, both hurt the administrative process of foster families’ adoption proceedings. Even in cases where the Native American parent(s), relatives, or affiliated tribe have no issue with the adoption, the process is still delayed by arbitrary administrative rules. In some cases, the child is even removed from stable adoptive parents to be placed in a neglectful, abusive situation. The U.S. Court of Appeals for the Fifth Circuit recently reversed a district court’s decision to deem ICWA as applied to adoption unconstitutional under equal protection, the Tenth Amendment, the nondelegation doctrine, and the Administrative Procedure Act.

This Fifth Circuit ruling creates a dangerous new precedent that eliminates the distinction between racial and political classifications, upholding ICWA’s definition of a child’s political classification based solely on her race (as determined by a minute blood quantum). This logic ignores the cultural and political identification of the child, while bolstering the use of race in government decision making. At the very least, biological eligibility for tribal membership is a form of national‐​origin classification, which is subject to the same strict scrutiny that applies to racial classifications in other contexts.

The court asserted that because many racially Indian children do not fall under ICWA’s definition of “Indian child,” this term is not a racial classification—which is incorrect, in that legal precedent dictates that a state classification does not become race‐​neutral simply because it is over‐ or underinclusive. Another ICWA provision requires children to be placed with “Indian” adults, regardless of tribal affiliation. In other words, a Sioux child must be placed with Seminole parents instead of a potentially better situation with black, white, Asian, or Hispanic parents. This “generic Indian” concept is a blatantly arbitrary racial identification.

Finally, the Fifth Circuit’s ruling will in fact further harm the most at‐​risk minorities. Native American children are at greater risk of abuse, neglect, molestation, alcoholism, drug abuse, and suicide than any other demographic in the nation. Instead of providing these children with more legal protection, ICWA creates heavier evidentiary burdens, thus forcing children to remain in abusive homes longer.

In collaboration with the Goldwater Institute and Texas Public Policy Institute, Cato has filed an amicus brief urging the Fifth Circuit to reconsider its decision and rehear the case en banc (with all the judges, not just a three‐​judge panel). The determination of Native American children’s rights due explicitly to their race certainly falls within the “exceptional importance” requirement for granting a rehearing en banc. If the court maintains its original ruling, Indian children will suffer irreparable harm due to the substandard legal protections that undermine their constitutional rights.

About the Authors
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute