On Nov. 9, the United States Supreme Court heard oral argument in the important case of Brackeen v. Haaland. At issue is the constitutionality of the Indian Child Welfare Act, commonly known as ICWA. Congress enacted the law in 1978 out of concern that courts, in foster care and adoption proceedings, often placed Native American children with non-Native families, thereby removing from American Indian tribes their most precious resource and the wellspring of their continued vitality.
To remedy this problem, the Indian Child Welfare Act creates preferences for the placement of Native American children in adoption and foster care proceedings: first, with the child’s family; second, with the child’s tribe; and third, with other Indian tribes. The legistation also requires state courts and state administrative agencies to ensure that non-tribal placements, when they do occur, are truly in the best interest of the child and to report placement decisions to the Secretary of the Interior, which oversees Indian affairs.
The challengers to the act contend, among other things, that the ICWA violates the 14th Amendment because Native American families have priority over non-Native families. This system, the challengers argue, creates preferences based upon race in violation of the Equal Protection Clause.
Utah disagrees. In concert with the eight federally recognized tribes in our state, the office of the Utah Attorney General has been a leading national voice in support of the Indian Child Welfare Act.
Utah’s view is shaped in part by an Attorney General of Native Hawaiian descent who understands the need to preserve Indigenous culture by passing it down, generation to generation.
It is also influenced by special counsel to Utah, Larry Echo Hawk, a former Idaho attorney general, county attorney and United States Bureau of Indian Affairs director who is of Pawnee heritage.
But support is not limited to Indigenous leaders alone. Many social workers and child advocates of all backgrounds at the state, county and city level in Utah also tout the act.
Utah recently joined California and 21 other states in submitting an amicus (or “friend-of-the-court”) brief in defense of ICWA. Although Utah and California are politically divergent in many ways, we agree that the Indian Child Welfare Act is constitutional and has served the interests of Native American children, the states and the tribes. You may access the amicus brief here: States’ Amicus Brief.
The Equal Protection Clause is a crown jewel in our constitutional system, enacted in the wake of the Civil War and designed to ensure that all humans are treated equally under the law, regardless of race. The principles of equal protection prohibit the states and the federal government from creating laws that classify people based upon race unless there is a compelling goal in doing so and the law is narrowly tailored to achieve that goal.
The Indian Child Welfare Act does not violate the Equal Protection Clause because tribal identity is not a racial category but a political one. The United States’ official relationship with its recognized tribes is one of “nation-to-nation,” and Utah’s relationship with them is one of “government-to-government.” The Constitution recognizes the sovereign status of Indian tribes in Article I, Section 2 (the “Indians Not Taxed” clause); Article I, Section 8 (the “Indian Commerce” clause); and in the 14th Amendment itself which acknowledges the presence of individuals in the United States (tribal members) who were not “subject to the jurisdiction” of the United States at the time of ratification.
Thus, the law does not create a preference system based on racial categories; rather, ICWA allows sovereign tribes, as political entities, to forge and maintain relationships with their members, including Native American children. The Supreme Court, in Morton v. Mancari, has already determined that Indian tribes and nations are sovereign political organizations, not discrete racial groups. The Indian Child Welfare Act does not violate the 14th Amendment.
Further, the law has seen significant success in the past 40 years. In 1976, for example, a Native American child in Utah was 1,500 times more likely to be in foster care than a non-Native child; in 2012, Native American children were four times more likely to be in foster care. And when foster care placement is necessary, Native American children are more likely to be placed with extended family members than they were prior to the act.
In a time when many may be cynical about the ability of governments to work together, The Indian Child Welfare Act has been an example of the state, localities, tribes and federal government coordinating in the interest of Native American children. Utah, for example, has entered into an intergovernmental agreement with the Navajo Nation to ensure cooperation in the implementation of ICWA.
Utah is home to diverse tribes whose members are also citizens of our great state. These tribes are entitled to the protections and benefits of the Indian Child Welfare Act. Utah will continue to take a leadership role in defending the law because it is effective and sound, both as a matter of policy and constitutional law.
Sean D. Reyes is Utah attorney general and Lance Sorenson is assistant solicitor general.