The Constitutionality of the Indian Child Welfare Act

Ohio Northern University Law Review Ohio Northern University Law Review

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The Constitutionality of the Indian Child Welfare Act The Constitutionality of the Indian Child Welfare Act

Emily Hudson

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The Constitutionality of the Indian Child Welfare Act

EMILY HUDSON

I. I

NTRODUCTION

The Indian Child Welfare Act (ICWA) was passed in 1978 as a response

to the disproportionate removal of Indian children from their homes

compared to non-Indian children.

It was found that this was

disproportionality in part because judges and child welfare workers did not

understand Indian culture–which led to prejudicial attitudes and the higher

rates of removal.

Congress enacted the ICWA through its plenary power

over Indian tribes.

The constitutionality of the ICWA is currently being decided by the Fifth

Circuit Court of Appeals.

In a remarkable decision, the District Court for

the Northern District of Texas, Fort Worth Division, found the act to be

unconstitutional for violating Equal Protection, anti-Commandeering, and the

non-delegation doctrine.

Despite the recent developments related to the

ICWA, the act’s constitutionality has been questioned since its enactment.

* Licensed Ohio Attorney; Ohio Northern University, J.D.

1. Indian Child Welfare Act (ICWA), C

HILD WELFARE INFORMATION GATEWAY,

https://www.childwelfare.gov/topics/systemwide/diverse-populations/americanindian/icwa/ (last

accessed May 1, 2020).

2. S

TEPHEN L. PEVAR, THE RIGHTS OF INDIANS AND TRIBES 291 (1991).

3. Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U.

PA. L. REV. 195, 197 (1984).

4. See Brackeen v. Bernhardt, 942 F.3d 287 (5th Cir. 2019) [hereinafter Bernhardt II].

5. Brackeen v. Zinke, 338 F.Supp. 3d 514, 546 (N.D. Tex. 2018).

6. Id. at 519.

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This comment analyzes several constitutional arguments made against

the ICWA. First the relationship between congressional power over tribes

and tribal sovereignty will be described, as this foundational information is

necessary to understanding the constitutional arguments that may be made

against the act.

Next, this comment will discuss the act itself, with a focus

on the history and relevant sections of the act.

This comment will then move

into a discussion and analysis of some of the constitutional arguments that

may be made against the act.

The discussion will then move into recent

developments related to the act–including discussion of Brackeen v.

Bernhardt (formerly Zinke).

Lastly, potential consequences if the act is

found to be unconstitutional will be discussed.

II. R

ELATIONSHIP BETWEEN CONGRESSIONAL POWER OVER TRIBES

AND TRIBAL SOVEREIGNTY

Indian law is complex and something many individuals do not fully

understand. As the Court correctly stated in United States v. Kagama,

“[t]he

relation of the Indian tribes living within the borders of the United States,

both before and since the Revolution, to the people of the United States has

always been an anomalous one and of a complex character.”

Brigham

Young University Law professor, Michalyn Steele, said it best when

describing Indian law: “[t]he story of federal Indian law is a study in the art

of using the shards of adverse precedent to cobble together enduring

arguments and principles from what remains.”

Part of this complexity

comes from interrelation between Congressional power over tribes and tribal

sovereignty.

Congress is able to enact broad legislation over Indians because of their

plenary power and trust doctrine.

Further, while some of this legislation

contains what would be considered “racial classifications,” when it comes to

Indians, tribal membership is considered a political classification because of

the quasi-Sovereign status of Indians.

In order to fully analyze the

7. See infra Part II.

8. See infra Part III.

9. See infra Part IV.

10. See infra Part V.

11. See infra Part VI.

12. 118 U.S. 375 (1886).

13. Id. at 381.

14. Michalyn Steele, Plenary Power, Political Questions, and Sovereignty in Indian Affairs, 63

UCLA

L. REV. 666, 679 (2016).

15. See id. at 679.

16. Id. at 680.

17. Leah Litman & Matthew L.M. Fletcher, The Necessity of the Indian Child Welfare Act,

TLANTIC (Jan. 22, 2020), https://www.theatlantic.com/ideas/archive/2020/01/fifth-circuit-icwa/605167/

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constitutionality of the Indian Child Welfare Act an understanding of tribal

sovereignty, congressional power over the tribes, and the historical context

of the Act are necessary.

a. Tribal Sovereignty

Tribes are not private associations, as they exercise political sovereignty

over the individuals and property present on the reservations.

Native

American Tribes are considered quasi-sovereign.

They are not states of the

Union, but separate, dependent nations within the United States.

However,

tribal members are still United States citizens and subject to the federal

government.

Cherokee Nation v. Georgia is the initial case defining tribal

sovereignty.

In determining if the Cherokee Nation was a “foreign nation”

under the constitution, Chief Justice Marshall determined that while not

foreign sovereigns, tribes were “domestic dependent nations.”

Defined in

this fashion, the tribes retained some of their original sovereignty and

essentially had the character of a state, in that they could manage their own

affairs and were self-governing.

The Court has also found that part of Indian tribal sovereignty stems from

“aboriginal authority” that existed prior to the Constitution.

Thus, some

jurisdiction of the tribe is not granted from the federal government but is an

“inherent power[s] of a limited sovereignty which has never been

extinguished.”

However, despite retaining some sovereignty, tribes are still

under the authority of the federal government.

b. Federal Power Over Indians

Not only is Congress’s power over Indian tribes unique in our

government, it is extremely vast.

Just a few of Congress’s powers over

Indians include the ability to increase or decrease tribal authority and abolish

18. See infra Part II.

19. Newton, supra note 3, at 197.

20. Steele, supra note 14, at 679.

21. Cherokee Nation v. Georgia, 30 U.S. 1, 17-18 (1831).

22. Newton, supra note 3, at 197.

23. Cherokee Nation, 30 U.S. at 1.

24. Id. at 17.

25. Id. at 16.

26. Steele, supra note 14, at 678; US v. Wheeler, 435 U.S. 313, 323-24 (1978); Talton v. Mayes,

163 U.S. 376, 382-83 (1896).

27. Wheeler, 435 U.S. at 322 (quoting Felix S. Cohen, H

ANDBOOK OF FEDERAL INDIAN LAW 122

(1945)).

28. See Steele, supra note 14, at 680-81.

29. Litman & Fletcher, supra note 17.

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both tribes and reservations.

While the Constitution does not explicitly

grant Congress a “general power” over Indian affairs, it has been found that

Congress does in fact have plenary power that it may use to regulate Indian

affairs.

The Indian Commerce Clause and the trust doctrine have been used

to both find and justify utilization of this plenary power.

i. Indian Commerce Clause and the Basis of Federal Power

The Indian Commerce Clause has been used as one source granting

Congress power over Indian tribes.

Article one, Section 8 of the United

States Constitution gives Congress the power “[t]o regulate Commerce with

foreign Nations, and among the several States, and with the Indian Tribes.”

This section has been interpreted as giving Congress ‘plenary power’ over

Indian tribes.

This ‘plenary power’ gives Congress the same amount of

control over the Indian tribes as States have over their citizens.

The Supreme Court has relied on this clause as supporting the federal

government’s power over tribes.

Specifically, the Court has stated that “the

Indian Commerce Clause makes ‘Indian relations . . . the exclusive province

of federal law.’”

Further, this power has been found to be vast—giving the

federal government exclusive and essentially unchecked authority over

Indian tribes.

Due to this plenary power, Congress has the ability to limit,

modify, or eliminate tribal powers.

The federal government may take

Indian tribal land without just compensation.

Additionally, Congress may

terminate tribal status.

ii. Trust Doctrine

There have been a number of Supreme Court decisions during the late

1800s and early 1900s that recognized Congress’s plenary power.

30. Id.

31. Newton, supra note 3, at 196.

32. United States v. Lara, 541 U.S. 193, 200 (2004).

33. Newton, supra note 3, at 230-31.

34. U.S.

CONST. art. 1. § 8.

35. Newton, supra note 3, at 230.

36. Federal Indian Law for Alaska Tribes, UAF, https://www.uaf.edu/tribal/112/unit_1/usconstit

utionandcongress%20.php (last visited 5/1/2020).

37. Gregory Ablavsky, Beyond the Indian Commerce Clause, 124

YALE L.J. 1012, 1014 (2015).

38. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 60 (1996) (quoting Cnty. of Oneida v.

Oneida Indian Nation, 470 U.S. 226, 234 (1985)).

39. See Cotton Petroleum Corp. v. New York, 490 U.S. 163, 192 (1989) (“[T]he central function

of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian

affairs.”); Ablavsky, supra note 37.

40. Federal Indian Law for Alaska Tribes, supra note 36.

41. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 290-91 (1955).

42. Federal Indian Law for Alaska Tribes, supra note 36.

43. Litman & Fletcher, supra note 17.

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However, many of these decisions were made based on the belief that Indians

were not able to efficiently govern themselves.

The Court’s decisions gave

Congress greater power over Indian affairs.

The Court based its rationale

on the notion that Indians were “weak and helpless,” and therefore the federal

government needed to have a broad domain over them for their own

protection.

This is what has been called the “trust relationship” between the

United States government and Indian tribes.

As Chief Justice Marshall characterized in Cherokee Nation, this

relationship is similar to “that of a ward to his guardian.”

This “trust

relationship” was recognized in Worcester v. Georgia,

where Chief Justice

Marshall stated that “[t]he Indian nations had always been considered as

distinct, independent political communities. . . . [T]he settled doctrine of the

law of nations is, that a weaker power does not surrender its independence–

its right to self-government, by associating with a stronger, and taking its

protection.”

Further, in Worchester, Marshall related this duty of protection

back to treaties that the Cherokee Nation had signed and that they

“acknowledge[d] themselves to be under the protection of the United States,

and of no other power. Protection does not imply the destruction of the

protected.”

Historically, Congress used this doctrine to justify federal actions.

There is no doubt the trust doctrine stems from prejudicial ideology.

Despite this congressional power’s racist beginnings, it has allowed Congress

to protect Indians from both “new and old forms of discrimination,

imperialism, and white supremacy.”

Notably, this trust relationship does

not possess a constitutional basis.

III. T

HE INDIAN CHILD WELFARE ACT

The Indian Child Welfare Act was adopted pursuant to Congress’s

plenary power and duties under the trust doctrine.

The following sections

44. Id.

45. Id.

46. Id.

47. Newton, supra note 3, at 232-33.

48. Cherokee Nation, 30 U.S. at 17.

49. 31 U.S. 515 (1832).

50. Id. at 559-61.

51. Id. at 552.

52. Newton, supra note 3, at 219.

53. Id. at 218.

54. Litman & Fletcher, supra note 17.

55. Newton, supra note 3, at 232-33.

56. Worcester, 31 U.S. at 519; Litman & Fletcher, supra note 17.

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describe the reasons for the enactment and important parts of the act and the

Final Rule relevant to this paper.

a. Reasons for ICWA Enactment

Congress passed the ICWA in 1978 after it became apparent that Indian

children were removed from their homes at a disproportionately higher rate

than non-Indian children.

Prior to its enactment, Congress conducted a

study in the mid-1970s which found that state child welfare and private

adoption agencies removed 25-35 percent of all Indian children.

The study

also found that in one state Indian children were adopted eight times more

frequently than white children.

In another state it was found that Indian

children were 13 times more likely to be placed in foster care than their non-

Indian counterparts.

Additionally, Congress found that children who were

removed were placed in non-Indian homes at an exceedingly high

percentage.

Even when relatives were willing and fit to care for the

children, 85 percent of these children were placed outside of both their

families and community.

Congress also found that while there were many causes for removal, non-

Tribal public and private agencies and State child-protective agencies played

a large role in the alarming rates of separation.

Furthermore, these agencies

and courts did not recognize tribal and social relations and different cultural

and social standards when they removed children.

Judges and state social

workers lacked an understanding and basic knowledge of Indian culture and

child-rearing, deficiencies which resulted in prejudiced attitudes and removal

of the children.

For instance, the extended Indian family, which could

include hundreds of relatives, was often directly involved in raising a child.

These family members were counted as close, responsible family members.

Many social workers, however, found these family dynamics abnormal, and

57. See infra pp. 6-12.

58. Indian Child Welfare Act (ICWA), supra note 1.

59. Setting the Record Straight: The Indian Child Welfare Act, N

ATIONAL INDIAN CHILD WELFARE

ASSOCIATION (Sept. 2015), https://www.nicwa.org/wp-content/uploads/2017/04/Setting-the-Record-

Straight-ICWA-Fact-Sheet.pdf; P

EVAR, supra note 2, at 291.

60. Id.

61. Id.

62. B

UREAU OF INDIAN AFFAIRS, GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD WELFARE

ACT 5 (2016) [hereinafter THE GUIDELINES].

63. Setting the Record Straight, supra note 59.

64. T

HE GUIDELINES, supra note 62, at 5.

65. Id.

66. P

EVAR, supra note 2, at 291.

67. H. Rep. No. 95-1386, at 10 (1978).

68. Id.

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they felt that leaving the children with individuals outside the nuclear family

was neglect.

As noted in the House Report, Congress intended the ICWA “to address

the Federal, State, and private agency policies and practices that resulted in

the ‘wholesale separation of Indian children from their families.’”

Congress

worked with American Indian and Alaska native officials, child welfare

experts, and families impacted through the unnecessary removal of children

from their homes, in order to pass the ICWA in 1978.

The act sets the

standards for the removal and out-of-home placement of Indian children,

while allowing tribes to be more interactive in the cases.

b. The Provisions of the Act

The Indian Child Welfare Act is an extensive act which places many

duties and responsibilities on states in order to protect tribal children.

After

the act’s passage in 1978, new guidelines followed in 1979 to provide

guidance to the states on how to follow and interpret the act relating to Indian

child custody proceedings.

In December 2016, the Bureau of Indian Affairs

(BIA) updated these guidelines.

While these guidelines are legally non-

binding, in 2016 the BIA also implemented regulations regarding

implementation of the ICWA in both state courts and public and private

agencies.

These regulations, meanwhile, are legally binding.

The goal of the ICWA is to “protect the best interests of Indian children

and to promote the stability and security of Indian tribes and families . . . .”

It lays the foundation, framework, and requirements for the adoption of and

child custody proceedings involving Indian children.

Overall, it

“establishes: (1) placement preferences in adoptions of Indian children; (2)

good cause to depart from those placement preferences; (3) standards and

69. Id.

70. T

HE GUIDELINES, supra note 62, at 5 (quoting Rep. No. 95-1386, at 9 (1978), reprinted in 1978

U.S.C.C.A.N. 7530, 7531).

71. Setting the Record Straight, supra note 59.

72. Child Welfare Act (ICWA), supra note 1. Child custody proceedings covered by the act

includes foster-care placement, a termination of parental rights (TPR), a preadoptive placement, or an

adoptive placement. 25 U.S.C. § 1903(1); 25 C.F.R. § 23.2.

73. As the act is very extensive, I will only highlight the main portions relevant to understanding

the act or relevant to Constitutional challenges discussed in this paper.

74. T

HE GUIDELINES, supra note 62, at 7.

75. Id. at 5 (Guidelines for State Courts); Indian Child Custody Proceedings, 44 Fed. Reg. 67,584

(Nov. 26, 1979).

76. About ICWA, N

ATIONAL INDIAN CHILD WELFARE ASSOCIATION, https://www.nicwa.org/abo

ut-icwa/ (last visited May 1, 2020).

77. Id.

78. Id.

79. 25 U.S.C. § 1902 (2020).

80. Id.

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366 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 47

responsibilities for state courts and their agents; and (4) consequences

flowing from noncompliance with the statutory requirements.”

The Act

provides guidance through every possible scenario related to child custody

proceedings–both voluntary and involuntary.

The act is applicable during custody proceedings involving an Indian

child.

“Custody proceedings” under the ICWA include when there is a child

in need of care, termination of parental rights, adoption,

guardianship/conservatorship, or a status offense case if any part of the case

results in removal.

Additionally the ICWA only applies when the child is

an Indian child.

An “Indian child” is as an unmarried individual under the

age of eighteen who is either a citizen of a federally recognized tribe or is the

biological child of a tribal member and eligible for tribal citizenship.

The tribal community receives preference over non-Native individuals

when it comes to placement of the child in child custody proceedings.

When an Indian child is subject to adoptive proceedings, foster care, or pre-

adoptive placements, the ICWA gives preference to the child’s extended

family, members of the child’s tribe, and then other Indian families, over non-

native families.

Importantly, the child’s tribe may establish a different order

of preferences.

In these cases, the state follows the tribe’s preferential order

“so long as the placement is the least restrictive setting appropriate to the

particular needs of the child . . . .”

Additionally, the ICWA creates a dual jurisdictional system that

prioritizes tribal interests.

While the child lives or is domiciled on the

reservation, the state court has no jurisdiction related to the child’s custody;

rather, the tribal courts have exclusive jurisdiction in this situation.

When

the child lives off the reservation, state and tribal courts share concurrent

jurisdiction, with the tribe having priority.

In this scenario, the state is

81. Zinke, 338 F.Supp. 3d at 521.

82. Id. at 521, 524.

83. T

HE GUIDELINES, supra note 62, at 4.

84. 25 C.F.R. § 23.103(a); U.S.

DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS,

GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD WELFARE ACT, 2016, 78-79.

85. 23 C.F.R. § 23.103.

86. Id. §§ 23.103, 23.2; Alicia Summers, et al., The Importance of Measuring Case Outcomes in

Indian Child Welfare Cases¸ A

MERICAN BAR ASSOCIATION (Jan. 1, 2017), https://www.americanbar.org

/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol-36/January

-2017/understanding-the-2016-indian-child-welfare-act-regulations/.

87. 25 U.S.C. § 1915(c).

88. Zinke, 338 F.Supp. 3d at 521.

89. 25 U.S.C. § 1915(c).

90. Id.

91. P

EVAR, supra note 2, at 293. It is also important to note that the ICWA treats emergency

placements as separate proceedings – that is in situations where there is an “imminent physical damage or

harm to the child” not all of the ICWA provisions apply. 25 C.F.R. §§ 23.104, 113.

92. 25 C.F.R.§ 23.2.

93. P

EVAR, supra note 2, at 293.

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required to transfer the case to the tribal court at the tribe’s or parents’

request.

Because many Indians live off the reservation, the cases may start

in the State court and then be transferred to the tribal court.

The states are also required to follow record-keeping rules to show their

compliance with the statute.

A final custody order may be overturned in the

absence of ICWA compliance.

This possible consequence essentially

places a higher burden on states when it comes to Indian children.

Given

the various procedural steps, rules, and record-keeping requirements, that

must be taken, child custody cases involving Indian children are much more

involved than typical child custody cases.

c. The Final Rule

Due to inconsistent application of the ICWA among states, the BIA

revised the guidelines on the ICWA and implemented regulations for the

ICWA for the first time ever.

100

The BIA updated both the regulations (Final

Rule) and Guidelines in 2016.

101

The revised guidelines help clarify the

ICWA for state courts and private and public agencies.

102

Part of the new regulations require child agencies to collect data related

to their ICWA cases in order to better track the case outcomes and help to

ensure these agencies follow the guidelines.

103

From the Act’s inception until

the passage of the new regulations, there was no requirement to ensure that

states were complying with the act’s protections.

104

Among the inconsistencies corrected was the method which state courts

use to determine “good cause.”

105

States must follow the placement

preferences, unless there is a determination that the there is good cause to

depart from those preferences.

106

Prior to the enactment of the regulations,

states “differ[ed] as to what constitute[d] ‘good cause’ for departing from

ICWA’s placement preferences . . . .”

107

Because of these inconsistencies,

the Final Rule requires that the party urging that ICWA preferences not be

94. Id.

95. Id. at 293-94.

96. 25 U.S.C. § 1915(e).

97. Id. § 1914.

98. Id.

99. Id.

§ 1915.

100. T

HE GUIDELINES, supra note 62, at 6.

101. Id.; Indian Child Welfare Act Proceedings, 81 Fed. Reg. at 38,779 (2016) (codified at 25 C.F.R.

pt. 23).

102. Indian Child Welfare Act Proceedings, 81 Fed. Reg. at 38,779.

103. Summers, et al., supra note 86.

104. Id.

105. See Zinke, 338 F.Supp. 3d at 521; 25 C.F.R. § 23.107(a).

106. 25 C.F.R.§ 23.129(c) (2016).

107. 81 Fed. Reg. at 38,783.

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followed bears the burden of proving by clear and convincing evidence the

existence of good cause for not following the preferred placement.

108

By requiring state courts’ inquiries to be on the record and by instructing

“parties to inform the court if they subsequently receive information that

provides reason to know the child is an Indian child,” the state court now has

more responsibility to determine if the child is in fact an Indian child.

109

Additionally, courts keep records and send them to the BIA when they make

a final adoption decree or an order in an Indian child placement.

110

The Final rule also states that only the Indian tribe to which the child

belongs can determine if the child is actually a member or eligible to be a

member of that tribe.

111

The court may not determine this itself.

112

Despite

the well-meaning intent of passing both the Act and promulgating the Final

Rule, both have recently been subject to Constitutional attacks.

113

As such,

the following section will discuss some potential constitutional arguments

that may be made against either.

114

IV. C

ONSTITUTIONAL ARGUMENTS

While the ICWA was passed with good intent, it has faced resistance

from its inception.

115

As demonstrated by Brackeen, discussed later in this

article, there are several constitutional arguments that can be made against

the act.

116

The below selections discuss equal protection, commerce clause,

and non-delegation arguments.

117

These are just a few of the potential

arguments.

a. Equal Protection

As Justice Black stated in Korematsu v. United States: “All legal

restrictions which curtail the civil rights of a single racial group are

immediately suspect. That is not to say that all such restrictions are

unconstitutional. It is to say that courts must subject them to the most rigid

scrutiny.”

118

As racial classifications are subject to strict scrutiny, if the act

108. 25 C.F.R. § 23.132(b).

109. Zinke, 338 F.Supp 3d at 524; 25 C.F.R. §23.107(a), (b).

110. Zinke, 338 F.Supp 3d at 524; 25 C.F.R. §23.140.

111. 25 C.F.R. §23.108(a).

112. Id. § (b).

113. Zinke, 338 F.Supp. 3d at 520.

114. See infra Section IV.

115. Barbara Ann Atwood, Flashpoints Under the Indian Child Welfare Act: Toward a New

Understanding of State Court Resistance, 51 E

MORY L.J. 587 (“By some accounts the Act has been the

victim of entrenched state court hostility ever since its enactment more than two decades ago.”).

116. Zinke, 338 F.Supp. 3d at 520.

117. See infra Section IV.a-c.

118. Korematsu v. United States, 323 U.S. 214, 216 (1944).

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does classify on the basis of race, it would be subject to strict scrutiny

review.

119

Based on precedent, any constitutional challenge brought under

equal protection would likely face an uphill battle. Historically, the Court

has been clear that “classifications based on Indian tribal membership are not

impermissible racial classification[s]” but are instead political

classifications.

120

Additionally, equal protection challenges have

continuously been rejected under this approach.

121

Without considering the quasi-sovereignty that tribes have and precedent

surrounding these issues, a challenge of the ICWA seems like a very straight

forward equal protection analysis using heightened scrutiny.

122

The tribes

certainly meet the conditions the United States Supreme Court has used in

justifying heightened scrutiny.

123

“The Court has observed that a suspect

class is one subject to a ‘history of purposeful unequal treatment.’”

124

Historically Indians have dealt with persecution and discrimination,

leading to them being one of the most disadvantaged groups in today’s

society.

125

Indians were the victims of colonization and practically suffered

a genocide at the hands of the colonizers.

126

Further, from then and into the

twentieth century, Indians have endured “torture, terror, sexual abuse,

massacres, systematic military occupations, removals of Indigenous peoples

from their ancestral territories, and removals of Indigenous children to

military-like boarding schools.”

127

Up until 1957, Indians living on

reservations could not vote in some state elections.

128

Even today they make

up less than one percent of the United States population, many live separately

on reservations, tribes tend to be poor, and many Indians speak their tribal

119. Id.

120. Adoptive Couple v. Baby Girl, 570 U.S. 637, 690 (2013) (Sotomayor, J., dissenting) (citing

United States v. Antelope, 430 U.S. 641, 645-47 (1977); Morton v. Mancari, 417 U.S. 535, 553-54 (1974)).

121. See e.g., Antelope, 430 U.S. at 647-49; Washington v. Confederated Bands & Tribes of the

Yakima Indian Nation, 439 U.S. 463, 501-02 (1979); Delaware Tribal Bus. Comm. v. Weeks, 430 U.S.

73, 85-90 (1977); see also Brief for the Indian Law Scholars as Amicus Curiae, 14, Bernhardt II, 942 F.3d

287 (2019) [Hereinafter Brief for the Indian Law Scholars].

122. Newton, supra note 3, at 246.

123. Id.

124. Id.

125. P

EVAR, supra note 2, at 2.

126. R

OXANNE DUNBAR-ORTIZ, AN INDIGENOUS PEOPLES’ HISTORY OF THE UNITED STATES 8-9

(2014). The UN Convention on the Prevention and Punishment of the Crime of Genocide, which the

United States has ratified, is not retroactive, but what occurred during the colonialism era against the

Indians could be classified as genocide under it. Id. at 126. In the convention, any one of five acts is

considered genocide if ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or

religious group’: killing members of the group; causing serious bodily or mental harm to members of the

group; deliberately inflicting on the group conditions of life calculated to bring about its physical

destruction in whole or in part; imposing measures intended to prevent births within the group; [or] forcibly

transferring children of the group to another group. Id. at 8.

127. Id. at 9.

128. Newton, supra note 3, at 246.

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language and maintain significant portions of their tribal culture.

129

Not only

do they have a past of purposeful, unequal treatment from a majority group,

but they are also a “discrete and insular minorit[y].”

130

This history would

lend credence to classifying American Indians as a suspect class.

131

However,

tribes are quasi-sovereign and tribal membership has been found to be a

political classification, which complicates matters.

132

Political

classifications, unlike racial classifications, are only subject to rational basis

review.

133

Despite the potential difficulties an equal protection challenge faces, it is

still an argument worth examining. Some argue that the act only applies to

children of Native American descent and as such impermissibly discriminates

on the basis of race.

134

However, there have been many previous decisions

where the Supreme Court has found that laws which give preferences to

Indians are not based on racial distinctions, but are political and based on

tribal quasi-sovereignty.

135

Essentially, the question is this: is the distinction

in the act racial or based on tribal citizenship?

136

In determining whether the

classification is racial or political, a brief discussion and application of

Morton v. Mancari and Rice v. Cayetano

137

is important–as each case has

been used to both defend and question the constitutionality of the act.

138

i. Comparing Mancari and Rice

It is likely that in an equal protection decision on the ICWA either

Mancari or Rice would be applied as a standard.

139

Each case addresses

claims against statutes that involve classifications of “native” individuals,

each argument asserting the classification is racial.

140

The following sections

explain the two cases and the reasoning the United States Supreme Court used

in finding that there was or was not a racial classification.

141

129. Id. at 245.

130. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938); see also Newton, supra

note 8, at 246.

131. Newton, supra note 3, at 246.

132. Mancari, 417 U.S. at 535 n.4.

133. Id. at 535, 555.

134. Litman & Fletcher, supra note 17.

135. Id.

136. Elizabeth Jensen, Assessing an NPR Report On The Indian Child Welfare Act: A Complex Story

Needed More Context, NPR (Jan. 23, 2019).

137. 528 U.S. 495 (1999).

138. Mancari, 417 U.S. at 553-54; Rice, 528 U.S. at 522.

139. See Mancari, 417 U.S. at 553-54; Rice, 528 U.S. at 522.

140. Mancari, 417 U.S. at 547; Rice, 528 U.S. at 522.

141. See infra Section IV.a-b.

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a. Morton v. Mancari

Morton v. Mancari involved the Indian Reorganization Act of 1934

which gave preferences to Indians for employment within the Bureau of

Indian Affairs (BIA).

142

Under the Act, an individual had to have one-fourth

or more Indian blood and be a member of a federally-recognized tribe to

qualify as an Indian.

143

The Act was challenged under the basis that it

violated the Due Process clause of the Fifth Amendment as racial

discrimination.

144

The Court in Mancari found that hiring preferences to Indians were not

racial but were political.

145

The Court noted that because the statute required

“Indians” be members of a federally recognized tribe, it actually excluded

many individuals who would be considered racially Indian because they were

not members of a federally recognized tribe.

146

Further, the preference was

not given to Indians as a “discrete racial group, but, rather, as members of

quasi-sovereign tribal entities whose lives and activities are governed by the

BIA in a unique fashion.”

147

The Court looked to both the “unique legal status of Indian tribes” and

Congress’s plenary power and its connection with the trust doctrine to reach

this conclusion.

148

Specifically, the Court found that the hiring preferences

were not “racial discrimination” but that they were “employment [criteria]

reasonably designed to further the cause of Indian self-government . . . .”

149

Besides finding the classification in Mancari to be political, the Court

identified a sort of rational basis review as the appropriate standard for

judicial review in such cases.

150

Mancari precedent only requires that

Congress’s treatment be reasonably related to its “unique obligations” to

tribes and their members.

151

The Mancari test applies to federal

classifications which further Congress’s obligation to tribes.

152

It states when

“the special treatment can be tied rationally” to furthering congressional goals

“such legislative judgements will not be disturbed.”

153

142. Mancari, 417 U.S. at 537.

143. Id. at 553 n.24.

144. Id. at 537.

145. Id. at 553-54.

146. Id. at 553 n.24.

147. Mancari, 417 U.S. at 554.

148. Id. at 551.

149. Id. at 553-54.

150. Id. at 555 (“As long as the special treatment can be tied rationally to the fulfillment of Congress’

unique obligation toward the Indians, such legislative judgements will not be disturbed.”).

151. Id.; Brief for the Indian Law Scholars at 19.

152. Mancari, 417 U.S. at 555.

153. Id.; see also Brief for the Indian Law Scholars at 13.

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b. Rice v. Cayetano

Rice v. Cayetano involved a Hawaiian statute that restricted voter

eligibility to “Hawaiians” and “native Hawaiians” in a state election voting

for trustees of the Office of Hawaiian Affairs.

154

“Native Hawaiians” were

defined by statute as “descendants of not less than one-half part of the races

inhabiting the Hawaiian Islands prior to 1778.”

155

The statute defined

“Hawaiians” as “those persons who are descendants of people inhabiting the

Hawaiian Islands in 1778.”

156

The United States Supreme Court found that the statute’s prohibition of

non-Hawaiians right to vote violated the Fifteenth Amendment.

157

Further,

the Court found that the restriction was a racial classification and used

ancestry as a proxy for race.

158

Additionally, the Court found that in the

statute, Hawaii had “used ancestry as a racial definition and for a racial

purpose,” further noting that “ancestral tracing . . . employs the same

mechanisms, and causes the same injuries, as laws or statutes that use race by

name.”

159

The Court found that the Act contained a racial classification

because of the ancestral classification.

160

ii. Political or racial: Application of Rice or Mancari?

Some might apply Rice to strengthen the equal protection argument and

claim that the definition of Indian child is a racial one.

161

At first blush it

seems Rice could apply, and the ICWA’s definition of Indian child would be

unconstitutional.

162

In its definition the act defines an Indian child as both

one who has tribal membership or who is eligible for membership and the

biological child of a tribal member.

163

The part of the definition that requires

tribal membership is likely allowable under equal protection, as it follows

Mancari.

164

But the issue arises in the second definition of Indian child. The

“biological child” of a member of an Indian tribe is directly tied to an

individual’s being a descendant of a member, and this classification is related

to ancestry.

165

This conclusion seems to be the exact thing the Court pointed

154. Rice, 528 U.S. at 499.

155. Id. at 499 (citing H

AW. REV. STAT. § 10-2).

156. Id.

157. Id.

158. Id. at 514.

159. Rice, 528 U.S. at 515, 517.

160. Id. at 524.

161. Id. at 514-15.

162. See id. at 524.

163. 25 C.F.R. § 23.2.

164. Id.; Mancari, 417 U.S. at 554.

165. 25 C.F.R. § 23.2.

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out in Rice – ancestry and ancestral tracing should not be used as a racial

proxy.

166

Despite the similarities in statutory language, Rice is unlikely to apply.

167

This is again because of the quasi-sovereign status of Indians and Congress’

duty under the trust doctrine.

168

The Rice Court recognized that certain

members of Indian tribes are given preferential treatment, as in Mancari.

169

Hawaii actually used Mancari to support its claim that the exclusion of non-

Hawaiians from voting was allowed so the state could protect the interests of

native Hawaiians.

170

In response, the Court first pointed out that native

Hawaiians do not have the same status that Indian tribes do.

171

Stating

further, that Congress has authority over Indian tribes to preserve that tribal

status–this authority does not exist in regards to Native Hawaiians.

172

The

Court hints that power has to do with tribes being recognized as quasi-

sovereign (or being a political classification), as Congress has the ability to

apply to the Indian tribes, but it is unclear whether this ability carries over to

Native Hawaiians.

173

Further, the Court notes that the key aspect of Indian

legislation is the special treatment of Indian classification as citizens of the

tribe.

174

This fact distinguishes the case from Mancari.

175

In Mancari, while there was a racial aspect in the preference (the

individual had to have one-fourth or more Indian blood), they also had to be

members of a Federally-recognized tribe.

176

Instead of being a blanket

preference to an entire racial group of Indians, the Act was only for members

of a federally recognized tribe—and thus political.

177

Initially distinguishing between the two cases seems to be a difficult task.

However, one main difference between the cases and directly related to the

appropriate classification of Indians, is who determines who is Native

American.

178

In Rice, it was the state of Hawaii that was making that

determination.

179

Hawaii defined who belonged to the “native Hawaiian”

166. Rice, 528 U.S. at 514-15.

167. See id. at 518.

168. Id.

169. Id.

170. Id.

171. Rice, 528 U.S. at 518.

172. Id.

173. Id.

174. Id. at 519; Mancari, 417 U.S. at 552.

175. Rice, 528 U.S. at 519.

176. Id.

177. Id. at 519-20.

178. Patrick Runge, Brackeen v. Zinke, the Case Challenging ICWA’s Constitutionality, Explained,

UNGE LAW OFFICE, LLC (Apr. 5, 2019), https://patrickrunge.wordpress.com/2019/04/05/bra ckeen-v-

zinke-the-case-challenging-icwas-constitutionality-explained/.

179. Rice, 528 U.S. at 508-09.

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group and who belonged to the “Hawaiian” group.

180

Native Hawaiians and

Hawaiians were not defined as a separate group that defined membership

themselves—as in Mancari.

181

In Mancari, the tribes determined their

membership according to their own tribal rules.

182

The hiring preferences,

then, were based on those tribal determinations.

183

Tribes using their own

rules to determine employment is a concept which fits with tribal status being

a political classification rather than a racial one.

184

As sovereigns, the tribes

determine their own membership using qualifications such as “blood

quantum” or something else seemingly race-based.

185

Because of tribal

sovereignty they can make this decision.

186

The most important element of

sovereignty is “the power to make decisions for yourself as a group and be

governed by them—then determine who is a member of that group.”

187

The state government cannot determine who qualifies as an Indian and

thus who can and cannot participate.

188

In Rice, that happened.

189

The

Hawaiian legislature was deciding who could and could not vote—based on

whether the voter was “Hawaiian” or not.

190

The scenario in Rice was unlike

Mancari and the ICWA, where the tribe’s decision on membership (i.e.

citizenship of the tribe) is a “political decision made by a sovereign nation to

its own citizenship.”

191

The definition in the act would likely be found to be

political under this view.

192

However, Mancari can be interpreted and applied in another way.

193

How Mancari is interpreted may be crucial. It is possible to distinguish

Mancari and make the argument that the Indian classification in the ICWA is

racial.

194

Mancari could be construed to mean the law (1) only provided

special treatment to Indians living on or near a reservation and (2) relied on

actual tribal membership, even though the ICWA’s membership eligibility

does not.

195

In Mancari, the Court found that tribal membership was not a

racial classification because only individuals who belonged to a nationally

recognized tribe could benefit from such a membership—those whose tribes

180. Id. at 510.

181. Id. at 522.

182. Mancari, 417 U.S. at 554.

183. Id.

184. See Antelope, 430 U.S. at 646.

185. Runge, supra note 178.

186. Id.

187. Id.

188. See 25 U.S.C. § 1903(3) (2021) (defining who qualifies as an “Indian”).

189. Rice, 528 U.S. at 499.

190. Id.

191. Runge, supra note 178.

192. Id.

193. See Bernhardt I, 937 F.3d 406, 427 (5th Cir. 2019) [hereinafter Bernhardt I].

194. Runge, supra note 178.

195. Bernhardt I, 937 F.3d at 427.

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no longer existed or had been removed from their tribe were not affected.

196

The ICWA broadly defines an Indian child as “any unmarried person who is

under [the] age eighteen and is either (a) a member of an Indian tribe or (b)

is eligible for membership in an Indian tribe and the biological child of a

member of an Indian tribe.”

197

This allows children who are not current

members of the tribe to fall under the protection of the ICWA and thus seems

to be broader than the statute at issue in Mancari.

198

There is some scholarly support in coming to this conclusion using

Mancari.

199

The view is that the Court was not saying that being “Indian”

could not be a racial classification, it was not a racial classification under the

specific facts of the Mancari case.

200

As noted by David Williams, instead

[T]he Court carefully distinguished between two usages of the term

- racial and political. Mancari, for example, opposed a “‘racial’ group

consisting of ‘Indians’” to a category that includes only “members of

‘federally recognized’ tribes” and excludes “many individuals who

are racially to be classified as ‘Indians.’” It is therefore possible, in

the Court’s mind, to think of Indians in a racial light and so use the

category with a racial meaning. Apparently, however, the racial

usage is confined to the general category “Indian,” meaning all

Indians; one cannot use the category “enrolled members of the

Navajo Nation” in a racial sense. As long as the government confines

itself to “legislation singling out tribal Indians,” it is on safe

ground.

201

This suggests the possibility of equal protection issues when the term

“Indians” is too broadly defined, or, in the case of the ICWA, when an Indian

child who is not a current member of a tribe, but eligible to be a member.

202

As the child is not a current member of the tribe, it could be interpreted that

it’s a “broad” category of defining Indians.

203

Further, the Court itself has suggested that there might be equal

protection issues specifically related to this fact and the ICWA.

204

Adoptive Couple v. Baby Girl,

205

the Supreme Court’s most recent case

196. Mancari, 417 U.S. at 553, 553 n.24.

197. 25 U.S.C. § 1903(4) (2021).

198. Bernhardt I, 937 F.3d at 427.

199. See generally David C. Williams, The Borders of the Equal Protection Clause: Indians as

Peoples, 38 UCLA

L. REV. 759 (1991).

200. Id. at 793-94.

201. Id.

202. Baby Girl, 570 U.S. at 656.

203. Bernhardt I, 937 F.3d at 427.

204. Baby Girl, 570 U.S. at 656.

205. Id. at 637.

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specifically concerning the ICWA, without going into a full discussion the

Court stated that under certain factual conditions there could be equal

protection issues with the application of ICWA.

206

Specifically the Court

noted:

The Indian Child Welfare Act was enacted to help preserve the

cultural identity and heritage of Indian tribes, but under the State

Supreme Court’s reading, the Act would put certain vulnerable

children at a great disadvantage solely because an ancestor — even a

remote one — was an Indian. As the State Supreme Court read

§§1912(d) and (f), a biological Indian father could abandon his child

in utero and refuse any support for the birth mother — perhaps

contributing to the mother’s decision to put the child up for adoption

— and then could play his ICWA trump card at the eleventh hour to

override the mother’s decision and the child’s best interests. If this

were possible, many prospective adoptive parents would surely pause

before adopting any child who might possibly qualify as an Indian

under the ICWA. Such an interpretation would raise equal protection

concerns . . . .

207

This signaled that the Court had equal protection concerns about the

ICWA.

208

It suggests the Court had concerns when a child is simply eligible

for membership and not actually a tribal member.

209

However, instead of

addressing the issue, the Court avoided the constitutional question and used

a textual interpretation of the statute to resolve the legal issue in the case.

210

There may be concerns with the “biological child of a tribal member”

portion of the definition of an Indian child.

211

As noted above, this inclusion

might be what saves the eligible child definition. If a child is eligible for tribe

membership, the child must also be the biological child of a tribe member.

212

This definition is similar to the interpretation in Mancari to determine who

qualified as an Indian under the statute.

213

In Mancari, the Indian parent had

to be both one-fourth Indian and a member of a federally recognized tribe.

214

Here, if not a current member of a tribe, to be an “Indian child” the child must

be eligible for tribal membership and biologically related member of a

206. Id. at 653-54, 656.

207. Id. at 655-56.

208. Id. at 656.

209. Baby Girl, 570 U.S. at 646 n.1.

210. Id. at 646, 646 n.4.

211. Gregory D. Smith, ICWA Adoptions An Indian Child Welfare Act Primer, 5 A

CCORD LEGAL J.

FOR

PRAC. 81, 96-97 (2016).

212. 25 U.S.C. § 1903(5) (2021).

213. Mancari, 417 U.S. at 536.

214. Id. at 553 n.24.

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federally recognized tribe.

215

Both statutes require a blood connection to the

tribes.

216

In Mancari, the requisite blood connection was a blood-quantum

requirement and in the ICWA it is a direct descendant requirement.

217

However, despite these quasi-race classifications, as demonstrated in

Mancari, the requirement of membership in a federally recognized tribe

makes the status of an “Indian child” political.

218

Meanwhile, the ICWA

requires the biological parent of the eligible child be a member of the tribe,

meaning there is still a political consideration because of the membership

requirement.

219

In the end, while there may be equal protection concerns related to the

ICWA, it is unlikely to be found unconstitutional under that claim.

220

Generally, among academia, there appears to be a consensus that the “Indian”

classification is not based on race but is political because of the quasi-

sovereign status of Indians.

221

Further, Rice is likely to be found inapplicable

in relation to the ICWA because the statute in Rice was a state statute that

defined the group and prohibited others from voting based on the

classification.

222

Here, the classification defines itself. While the statute is

applicable to Indian children and those Indian children are eligible for tribal

membership, the tribes themselves define who qualifies for membership.

223

If a court were to find that the definition of an Indian child under the

ICWA was a political classification rather than a racial classification, a court

would likely use Mancari as its justification.

224

As such, the Mancari

standard should apply to the ICWA. This requires courts to determine if “the

special treatment can be tied rationally to” furthering congressional goals.

225

It is possible to find that Congress’s findings regarding “Indian children” and

their disproportionate removal from their homes due to discriminatory

practices, are in fact “sufficiently widespread to create existential threats to

some tribes.”

226

To combat this concern, Congress passed the ICWA to

protect “Indian families based on their status as members of sovereign Indian

215. See 25 U.S.C. § 1903(5).

216. Id.; Mancari, 417 U.S. at 554 n.24.

217. Mancari, 417 U.S. at 553 n.24.

218. Id. at 553 n.24.

219. 25 U.S.C. § 1903(5).

220. See Baby Girl, 570 U.S. at 656.

221. Caroline M. Turner, Implementing and Defending the Indian Child Welfare Act Through

Revisited State Requirements, 49

COLUM. J. L. SOC. PROBS. 517-18 (2016).

222. Rice, 528 U.S. at 499.

223. 25 U.S.C. § 1903(5).

224. Mancari, 417 U.S. at 554.

225. Id. at 553 n.24; see also Brief for the Indian Law Scholars at 14.

226. Id. at 16.

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nations . . . .”

227

Here, the passage of the ICWA would meet the rational basis

review set in Mancari.

228

b. Commerce Clause

Another constitutional argument that may be made is that Congress

exceeded its commerce power when it enacted the ICWA.

229

Potentially, the

Congressional power over the tribes has been defined too broadly.

230

While

this argument is one that is likely to fail, it is interesting and worth

mentioning. Based purely on a textual reading of the Constitution, the ICWA

could be found unconstitutional.

231

This is an argument made in Justice

Thomas’ concurrence in Adoptive Couple v. Baby Girl, wherein Justice

Thomas pointed out that nowhere in the Constitution is Congress granted the

“power to override state custody law” anytime there is an Indian involved.

232

Additionally, Justice Thomas noted that nowhere in the text or the

original understanding of the Commerce Clause is there support for

Congressional plenary power over Indian affairs.

233

The Indian Commerce

Clause grants Congress the power “[t]o regulate commerce with foreign

nations, and among the several states and with Indian tribes.”

234

He focused

on the word “commerce,” noting that when the Constitution was ratified

commerce meant “selling, buying, and bartering, as well as transporting for

these purposes.”

235

This did not include noneconomic “activity such as

adoption of children.”

236

The scholarly view is that the Framers only intended

for the federal government to have power over commerce, i.e. trade, with the

Indians, and that this has been too broadly defined.

237

If the Indian Commerce Clause is read as straight forwardly as Justice

Thomas suggests, then Congress would have no plenary power and only be

able to regulate commercial interactions with tribes.

238

Precedent aside, if his

interpretation is followed the act would be unconstitutional, as there is a

strong argument that “commerce” did not mean to apply to the “adoption of

children.”

239

227. Id. at 16-17.

228. Mancari, 417 U.S. 555.

229. Newton, supra note 3, at 237.

230. Id.

231. See Baby Girl, 570 U.S. at 666 (Thomas, J., concurring).

232. Id. at 658.

233. Id. at 658.

234. U.S.

CONST. art. I, § 8 (emphasis added).

235. Baby Girl, 570 U.S. at 659.

236. Id. at 659.

237. Newton, supra note 3, at 237-38.

238. Baby Girl, 570 U.S. at 660.

239. Id. at 659.

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However, there is evidence that when the Constitution was drafted, unlike

Justice Thomas argued, commerce with Indian tribes did not solely mean

“trade with Indians.”

240

The Indian Commerce Clause had a broader meaning

than Justice Thomas asserted.

241

“Commerce” was only used occasionally in

publications dealing with Indian affairs; but “trade” and “intercourse”

appeared more frequently.

242

The use of the term “intercourse” was a legal

term of art that was used to describe the relations between the Indians and

settlers.

243

Additionally, where “commerce” was used in the Constitution, a

similar meaning was found; for example, the reference to the “exchange of

religious ideas among tribes.”

244

This historical evidence indicates that

“commerce” was not just used to describe economic exchanges, and “trade”

meant more than economic activity when used in reference to Indians.

245

While the term “trade” referred to “buying, selling, trading, exchanging, and

gifting items,” this vocabulary was present in the contexts of diplomacy and

politics, rather than commercial transactions.

246

The historical usage of the

term “trade” supports the claim that “commerce” with Indians was very

diverse, and had several meanings, not strictly Justice Thomas’ textual

interpretation.

247

The fact is, that even if Justice Thomas was correct on the meaning of the

text and the original intent, the ICWA would not be found unconstitutional

based on the argument that commerce with tribes went beyond simply

“trading”—to do so would risk ending Congress’ plenary power and thus

strike down most legislation related to Indian tribes.

248

Congress’s plenary

power has long been found to come in part from the Indian Commerce Clause

and it has continually “been recognized and rarely questioned.”

249

While

Congress’s plenary power over the tribes is not absolute, the Court has time

after time found that Congress has plenary power over Indian affairs, and that

power comes in part from the Indian commerce clause.

250

240. Ablavsky, supra note 37, at 1028.

241. Id.

242. Id.

243. Id. at 1028-29.

244. Id.

245. Ablavsky, supra note 37, at 1029.

246. Id.

247. Id. at 1028.

248. Id. at 1032.

249. Ann E. Tweedy, Using Plenary Power as a Sword: Tribal Civil Regulatory Jurisdiction Under

the Clean Water Act of United States v. Lara, 35

ENVTL. L. 471, 484 n.64 (2005). See also Lara, 541 U.S.

at 201.

250. See, e.g., Wheeler, 435 U.S. at 319 (“[T]he undisputed fact that Congress has plenary authority

to legislate for the Indian tribes in all matters, including their form of government.”). But see, e.g., United

States v. Alcea Band of Tillamooks, 329 U.S. 40, 54 (1946) (“The power of Congress over Indian affairs

may be of a plenary nature; but it is not absolute.”).

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Throughout the history of Indian law, there has been judicial deference

to Congress regarding Indian policies.

251

Therefore, while Congress’s power

has been so broadly defined that essentially Congress can regulate any Indian

action,

252

the Indian Commerce Clause has been interpreted this way

throughout history.

253

The Court has recognized Congress’s plenary power

over Indian tribes by stating, “[i]f anything, the Indian Commerce Clause

accomplishes a greater transfer of power from the States to the Federal

Government than does the Interstate Commerce Clause.”

254

If the Court were

to find that the Indian Commerce Clause is being interpreted too broadly,

Indian legislation would be upended.

255

It is essentially settled law that the

Indian Commerce Clause is where Congress gets most of its plenary power

over Indian tribes.

256

It is for this reason that it is unlikely that the Court

would follow Justice Thomas’s reasoning.

257

If the ICWA were to be found

unconstitutional, it will not be for utilizing Justice Thomas’s argument.

c. Non-Delegation Doctrine

A non-delegation claim is another argument that could be made against

the ICWA and the Final Rule.

258

In fact, in Brackeen, that is one of the State’s

arguments.

259

The vesting clause of the United States Constitution states that

“[a]ll legislative Powers . . . shall be vested in a Congress of the United States

. . . .”

260

The State in Brackeen argued that section 1915(c) of the ICWA and

section 23.130(b) of the Final Rule violated the non-delegation doctrine.

261

Section 1915(c) allows the tribes to reorder the placement preference in

adoption cases.

262

Further, the Final Rule states that a tribe’s preference will

take priority over the specific order listed in the ICWA.

263

Arguably, the

ICWA grants tribes the authority to reorder “congressionally enacted

adoption” preferences and then force the tribe’s preference on the states in an

impermissible delegation of congressional power.

264

251. Newton, supra note 3, at 240.

252. Id. at 242.

253. See Lara, 541 U.S. at 200.

254. Seminole Tribe of Florida, 517 U.S. at 62.

255. Ablavsky, supra note 37, at 1032.

256. Lara, 541 U.S. at 200.

257. Ablavsky, supra note 37, at 1032.

258. See Zinke, 338 F. Supp. 3d at 536.

259. Id.

260. U.S.

CONST. art. I, § 1.

261. Bernhardt I, 937 F.3d at 435.

262. 25 U.S.C. § 1915(c) (2021).

263. 25 C.F.R. § 23.130(b) (2020).

264. Zinke, 388 F. Supp. 3d at 536.

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This is an interesting argument. Congress allows for discretion in the

execution of the law, but cannot delegate power to create laws.

265

Congress

may also grant agencies the power to execute legislation and interpret

ambiguities of that legislation.

266

Only when Congress has established an

“intelligible principle” that agencies base their decisions, is a delegation of

regulatory power proper.

267

The question here is whether, in granting the

tribes the ability to reorder the adoption placement preferences, has Congress

delegated the ability to create law to the tribes.

Specifically, section 1915(c) states that “if the Indian child’s tribe shall

establish a different order of preference by resolution, the agency or court

effecting the placement shall follow such order so long as the placement is

the least restrictive setting appropriate to the particular needs of the child . . .

.”

268

The Final Rule states that “[i]f the Indian child’s Tribe has established

by resolution a different order of preference than that specified in [the]

ICWA, the Tribe’s placement preferences apply.”

269

The language of the

ICWA and Final Rule are clear where the tribe establishes a different order

of preference than that ordered by a court or agency, the court or agency

follows the tribe order—despite its difference from the statutory

requirement.

270

Further, when there is a permissible delegation of Congressional power,

the delegation must be to a coordinate branch of government, meaning a

federal entity.

271

What are Indian tribes? Are Indian tribes a coordinate

branch of government? Even if the delegation of power itself is allowable,

the fact that Indian tribes are not part of the federal government prevents the

tribes from exercising power over state courts and agencies because these

entities are non-Indians on non-tribal lands.

272

However, the delegation of power by Congress may be considered

permissible because Indian tribes are not viewed as private entities, but as

quasi-sovereign.

273

When Congress incorporates another sovereign’s laws

into federal law, Congress’ actions do not violate the non-delegation

doctrine.

274

265. Loving v. United States, 517 U.S. 748, 758 (1996).

266. City of Arlington v. FCC, 569 U.S. 290, 296 (2013).

267. Whitman v. Am. Trucking Ass’n. Inc., 531 U.S. 457, 472 (2001) (quoting J.W. Hampton, Jr.

& Co. v. United States, 276 U.S. 394, 409 (1928)).

268. 25 U.S.C. § 1915(c) (2021) (emphasis added).

269. 25 C.F.R § 23.130(b) (2020).

270. 25 U.S.C. § 1915(c); 25 C.F.R. § 23.130(b).

271. Mistretta v. United States, 488 U.S. 361, 371-72 (1989).

272. Bernhardt I, 937 F.3d at 435.

273. Id.

274. Id. at 436; see also United States v. Mazurie, 419 U.S. 544, 557 (1975) (quoting United States

v. Curtiss-Wright Export Corp, 299 U.S. 304, 319-22 (1936)) (“It is necessary only to state that the

independent tribal authority is quite sufficient to protect Congress’ decision to vest in tribal councils this

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United States v. Mazurie

275

somewhat addresses this issue. In Mazurie,

the Wind River Tribe was able to control the introduction of alcohol within

the reservation on the privately owned land of non-Indians.

276

The United

States Supreme Court found the federal law that allowed this regulation did

not violate the non-delegation doctrine due to the Tribal sovereignty and a

tribe’s inherent power to regulate what goes on within the reservation.

277

Mazurie can be read to say that because of tribal sovereignty, despite not

being a federal entity, tribes given legislative authority are able to pass

resolutions when the resolutions pertain to the tribe.

278

However, Mazurie used a narrower interpretation.

279

In Mazurie, the

Tribe was regulating what occurred within the reservation, on tribal lands.

280

The tribe was not creating laws effecting non-Indians and state courts, outside

of the reservation.

281

The Brackeen Circuit court found this fact

unpersuasive, stating that “[i]t is well established that tribes have ‘sovereignty

over both their members and their territory.’”

282

The argument that remains

is that tribes must be able to have the power to regulate all Indian children,

whether they are on the reservation or not, in order to effectively exercise

authority related to tribal membership and domestic relations among the tribal

members.

283

Further, tribes have the authority and inherent power over domestic

relations, like child custody and tribal membership.

284

Therefore, through

section 1915(a), Indian tribes determine the appropriate placement for the

Indian children within the tribal community, and they exercise their “inherent

power to determine tribal membership [and] regulate domestic relations

among members” and children eligible for tribal membership.

285

This fact

relates back to Mazurie and tribes being quasi-sovereign because this

“legislation” concerns regulating the tribe.

286

Because of Indian tribes’ quasi-

portion of its own authority “to regulate Commerce . . . with the Indian tribes.”); United States v.

Sharpnack, 355 U.S. 286, 292-94 (1958) (holding that a staute that prospectively incorporated state

criminal laws “in force at the time of” the alleged crime was a “deliberate continuing adoption by

Congress” of state law as binding federal law in “federal enclaves” within state boundaries.); Gibbons v.

Ogden, 22 U.S. 1, 207 (1824) (“Although Congress cannot enable a State to legislate, Congress may adopt

the provisions of a State on any subject.”).

275. Mazurie, 419 U.S. at 556-57.

276. Id. at 547-48.

277. Id. at 556-57.

278. See Bernhardt I, 937 F.3d at 436-37.

279. Mazurie, 419 U.S. at 556-57.

280. Id. at 547.

281. Id. at 547-48.

282. Bernhardt I, 937 F.3d at 436 (quoting Mazurie, 419 U.S. at 557).

283. Id. at 436-37.

284. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 170 (1982) (Stevens, J., dissenting);

Montana v. United States, 450 U.S. 544, 564 (1981) (citing Wheeler, 435 U.S. at 326).

285. Montana, 450 U.S. at 564.

286. Mazurie, 419 U.S. at 556-57.

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sovereignty, the likelihood of the non-delegation doctrine applying is

small.

287

V. R

ECENT DEVELOPMENTS

Recently, there have been cases before the Supreme Court, or will likely

be before the Supreme Court related to these issues and are discussed

below.

288

A. Adoptive Couple v. Baby Girl

The United States Supreme Court ruled against tribal interests in

Adoptive Couple v. Baby Girl, when it overturned a South Carolina Supreme

Court’s application of the ICWA.

289

Baby Girl involved a putative father

who sought custody of his biological daughter, who was 3/256 Cherokee.

290

The child’s father was a member of the Cherokee Nation and her mother was

non-Indian.

291

After both separating from the father, and the father’s

affirmation that he intended to relinquish his parental rights, the mother put

the child up for adoption.

292

Despite being served, and signing, adoption

papers, the father contested the adoption in South Carolina court.

293

The child

had been living with a non-Indian family in South Carolina for a year.

294

The South Carolina court granted custody to the father, finding that the

ICWA applied to the case because the child was an Indian child and the father

was a “parent” as defined by the ICWA.

295

The South Carolina Supreme

Court found two provisions of the act prevented biological father’s rights

from being terminated.

296

When the United States Supreme Court reviewed the case, the majority

opinion avoided directly addressing any Constitutional arguments and

reversed the South Carolina Supreme Court’s holding in a 5-4 decision.

297

The Supreme Court did not decide whether the biological father was a parent

as defined by the statute because the Court found that neither section 1912(f)

or 1912(d) applied to the case, regardless of the child’s parentage.

298

Solely

287. Id. at 556.

288. See infra Parts V.a-b.

289. Baby Girl, 570 U.S. at 655-56.

290. Id. at 641.

291. Id. at 643.

292. Id. at 643-44.

293. Id. at 644.

294. Baby Girl, 570 U.S. at 644-45.

295. Id. at 645-46.

296. Id. at 646. The first provision focused on keeping Indian families intact, while the second

provision stated that parental rights could not be terminated if the termination of those rights would cause

“serious emotional or physical damage to the child.” 25 U.S.C. § 1912(d), (f) (2021).

297. Baby Girl, 570 U.S. at 641-42.

298. 25 U.S.C. § 1912(d), (f).

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using the text of the statute, the Court determined that because the father

never had “continued custody” of the child, there was no “breakup of the

Indian family” section that could be applied.

299

The Court further held that

the ICWA was inapplicable to cases such as this, where “the parent

abandoned the Indian child before birth and never had custody of the

child.”

300

Despite not directly addressing constitutional arguments, the Court made

several comments in dicta about potential concerns.

301

First, Justice Alito

pointed out how little Cherokee blood the child had, and that for this reason

alone the ICWA applied, resulting in the child being taken away from the

only parents she ever knew.

302

Further, he stated, “[i]t is undisputed that, had

Baby Girl not been 3/256 Cherokee, Biological Father would have no right

to object to her adoption under South Carolina law.”

303

Justice Alito’s continued focus on how “Cherokee” the child was,

indicates that he saw this classification as racial and unreasonably tied to the

child’s ancestry.

304

He stated that based on South Carolina Supreme Court’s

reading of the act, the state court’s interpretation “would put certain

vulnerable children at a great disadvantage solely because an ancestor—even

a remote one—was an Indian.”

305

This statement, and the use of the term

ancestor, which hints at Rice, a case which used ancestry as a racial proxy.

306

Lastly, Justice Alito pointed out that under certain factual situations, there

could be equal protection concerns with the ICWA.

307

Alito’s argument

shows that, while in this particular case the Court did not address equal

protection issues with the ICWA, there was no indication that equal

protection issues do not exist.

308

Despite these veiled constitutional arguments, the Court intentionally

narrowed the application of the sections at issue in an effort to avoid

constitutional issues in the future.

309

For instance, in order to explain his view

further, Justice Breyer wrote a concurrence stating, “We should decide here

no more than is necessary.”

310

Breyer noted it was necessary to limit the

holding to the specific facts of the case.

311

299. Baby Girl, 570 U.S. at 641.

300. Id.

301. Id. at 646, 655.

302. Id. at 646.

303. Id.

304. Baby Girl, 570 U.S. at 690 (Sotomayor, J., dissenting).

305. Id. at 655.

306. See Rice, 528 U.S. at 514.

307. Baby Girl, 570 U.S. at 656.

308. Id.

309. Id. at 667 (Breyer, J., concurring).

310. Id.

311. Id.

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This case suggests that while the Court may think there are equal

protection or other constitutional issues with the statute, it will likely do what

it can to avoid addressing those issues.

312

However, it might be forced to

address certain constitutional issues in Brackeen v. Bernhardt.

313

B. Brackeen v. Bernhardt/Zinke

Brackeen v. Bernhardt (formerly Zinke), is a case out of the Fifth

Circuit.

314

Many Indian nations, such as the Cherokee Nation, the Morongo

Band of Mission Indians, the Oneida Nation, and the Quinault Nation have

participated in in this case.

315

The suit was brought by Texas, Louisiana, and

Indiana and non-Native families seeking to adopt Indian children.

316

The

plaintiffs argue that specific provisions of the ICWA and regulations are

unconstitutional.

317

Specifically, they argue “the ICWA and the Final Rule

violate: (1) the equal protection requirements of the Fifth Amendment; (2)

the Due Process Clause of the Fifth Amendment; (3) the Tenth Amendment;

and (4) the proper scope of the Indian Commerce-Clause. Plaintiffs also

argue that: (1) the Final Rule violates the Administrative Procedure Act; and

(2) the ICWA violates Article I of the Constitution.”

318

Relating to the Equal Protection claim, the plaintiffs assert that sections

1915(a)-(b), section 1913(d), and section 1914, of the ICWA, along with

sections 23.129-132, of the Final Rule violate equal protection under the Fifth

Amendment.

319

They claim the ICWA is unconstitutional as the child’s

“race” is taken into account, and as such the act violates both state and federal

law because it “implement[s] a system that mandates racial and ethnic

preferences.”

320

The main disagreement is over whether sections 1915(a)-(b)

rely on racial classifications and are subject to strict scrutiny, or if the

classifications are political, and subject to rational basis review.

321

Additionally, they claim states are being forced to modify their child

welfare programs in order to comply with the federal act.

322

The plaintiffs

assert that sections 1901-23 and sections 1951-52 are unconstitutional under

Article One and the Tenth Amendment because they “violate the Commerce

312. Baby Girl, 570 U.S. at 667 (Breyer, J., concurring).

313. 937 F.3d at 416 (Bernhardt I).

314. Id. at 406.

315. Zinke, 338 F. Supp.3d at 520.

316. Litman & Fletcher, supra note 17.

317. Zinke, 338 F. Supp.3d at 519-20.

318. Id. at 530.

319. Id. at 530-31; Section 1915(a) and (b) are the preferences and criteria for adoptive placements

and foster or preadoptive placements. 25 U.S.C. § 1915(a)- (b).

320. Zinke, 338 F. Supp.3d at 520.

321. Id. at 531.

322. Id. at 520.

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Clause, intrude into state domestic relations, and violate the anti-

commandeering principle.”

323

The state plaintiffs alone seek the invalidation

of section 1915(c) and Final Rule section 23.130(b) because of a violation of

the non-delegation doctrine.

324

The case has turned into a “frontal attack” on federal law governing and

Congress’s authority over Indian affairs.

325

Essentially, the plaintiffs are

seeking to limit the federal government’s power over Indians arguing that

Congress can only regulate commerce with tribes, per the Constitution.

326

i. District Court

The fate of the ICWA has been up in the air since the case was first filed.

Initially, the court struck down the act.

327

In a shocking decision, the district

court granted summary judgement in favor of the plaintiffs, determining that

section 1903(4) defining an “Indian Child” was a race-based classification

that could not survive strict scrutiny, the ICWA and Final rule violated the

non-delegation doctrine, and that the ICWA violated the anti-commandeering

doctrine.

328

The District Court began its analysis by focusing on the equal protection

argument and relying on Rice v. Cayetano.

329

The District Court analogized

the Rice case and “ancestry as a proxy” in its finding that the classification in

the ICWA was a racial classification.

330

Additionally, the court distinguished

Mancari by noting that the preference in that case “only applied to members

of federally recognized tribes, which ‘operates to exclude many individuals

who are racially classified as ‘Indians.’’”

331

The court focused on the

definition of Indian child and found that it was too broad—it “defines an

Indian child as one who is a member ‘of an Indian tribe’ as well as those

children simply eligible for membership who have a biological Indian

parent.”

332

The court found this to be ancestral tracing, as an Indian child

would be a child who was “related to a tribal ancestor by blood.”

333

323. Id. (These sections cover statutes related to the congressional findings, congressional

declaration of policy, definitions, and then all of the sections related to child custody proceedings. Sections

1951 and 1952 are the specific statutes related to the recordkeeping, information availability, and

timetables related to the act.)

324. Id. at 520. (Section 1915(c) regards placement of Indian Children which allows the tribe to

establish a different order of placement than what is required in section (a) and (b) of the section and the

state is generally required to follow it.)

325. Litman & Fletcher, supra note 17.

326. Id.

327. Zinke, 338 F. Supp.3d at 546.

328. Bernhardt I, 937 F.3d at 420.

329. Zinke, 338 F. Supp.3d at 531-32.

330. Id. at 534.

331. Id. at 533.

332. Id. (emphasis in original).

333. Id.

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The court stated that this was the exact situation Mancari warned of when

the Court noted that a “blanket exemption for Indians” would raise issues.

334

Additionally, it found that because the act’s definition of Indian children

“defer[red] to tribal membership eligibility standards based on ancestry,

rather than actual tribal affiliation, the ICWA’s jurisdictional definition of

‘Indian children’ uses ancestry as a proxy for race and therefore ‘must be

analyzed by a reviewing court under strict scrutiny.’”

335

The court then subjected the act to a strict scrutiny review and found that

the government did not show there was a compelling governmental interest

that the racial classification serves.

336

The court also found the act was not

narrowly tailored.

337

Thus, it did not survive strict scrutiny and the plaintiffs

had a valid equal protection claim.

338

The district court went on to address the Article I non-delegation claim.

339

The Vesting Clause provides that “[a]ll legislative Powers . . . shall be vested

in a Congress of the United States.”

340

The plaintiffs argued that section

1915(c) of the ICWA was an impermissible delegation of congressional

power to the Indian tribes because it allows the tribes to “reorder

congressionally enacted adoption placement preferences by tribal decree and

then apply their preferred order to the states.”

341

Further, the plaintiffs argued

that section 23.130(b) of the regulations also violates the non-delegation

doctrine.

342

The district court found that these were, in fact, violations of the non-

delegation doctrine.

343

Noting that while there are permissible delegation of

congressional power which involve the ability to execute laws, this was an

instance of congressional delegation to create law, which is impermissible.

344

Here, the court found that instead of granting the tribes a power to interpret

an ambiguity within the act, Congress had granted them the power to change

its legislative preferences that had been enacted in the ICWA.

345

Further,

these changes were binding on the state courts.

346

Additionally, even if the

delegation had been permissible, the court found that it was beyond

334. Zinke, 338 F. Supp. 3d at 533.

335. Id. at 533-34.

336. Id. at 534.

337. Id. at 535.

338. Id. at 536.

339. Zinke, 338 F. Supp.3d at 536.

340. U.S.

CONST. art. I. § 1, cl. 1.

341. Zinke, 338 F. Supp.3d at 536.

342. Id.

343. Id. at 537.

344. Id. at 536.

345. Id. at 537.

346. Zinke, 338 F. Supp.3d at 537.

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Congress’ power because tribes are not government entities.

347

The court

equates tribes to private entities, noting they are “‘not part of the federal

Government at all,’ which ‘would necessarily mean that [they] cannot

exercise. . . governmental power.’”

348

After finding a violation of the non-delegation doctrine, the court moved

on to the anti-commandeering doctrine.

349

Essentially, the anti-

commandeering doctrine says that Congress cannot order states to do

something—i.e. Congress is allowed to regulate individuals, not States.

350

The plaintiffs claimed the ICWA and Final Rule violate the Tenth

Amendment through commandeering.

351

The defendants argued that

Congress had the power to enact the ICWA through the Indian Commerce

Clause and that its “authority over Indian children was never reserved to the

States.”

352

Again, this goes back to federal power over Indians. However,

the district court found that the ICWA directly commanded that state courts

and agencies adopt and apply a federal standard in a state cause of action

(child custody causes of action).

353

The courts final judgment resulted in ICWA sections 1901-23, 1951-52,

and Final Rule sections 23.106-22, 23.124-32, and 23.140-41 being declared

unconstitutional.

354

The defendants subsequently appealed.

355

The case was

subsequently appealed.

ii. Circuit Court

After the district court ruling was appealed, the Fifth Circuit Court of

Appeals heard the case.

356

Initially, the Circuit Court upheld the act.

357

However, on January 22 the case was reheard en banc before the entire

judicial panel of the Fifth Circuit.

358

There has yet to be a ruling in the

rehearing. The below will discuss the holding prior to the en banc panel.

347. Id. at 536.

348. Id. at 537-38 (quoting Dept. of Trans. v. Ass’n of Am. R.R.’s, 135 S. Ct. 1225, 1253 (2015)

(Thomas, J. concurring)).

349. Id. at 538. While I did not address the anti-Commandeering argument in my analysis of

potential constitutional arguments, I will very briefly address the court’s finding here.

350. Murphy v. NCAA, 138 S. Ct. 1461, 1475-76 (2018).

351. Zinke, 338 F. Supp.3d at 538.

352. Id. at 538.

353. Id. at 541.

354. Id. at 546.

355. Bernhardt I, 937 F.3d at 416.

356. Id. at 406.

357. Id. at 416.

358. Acee Agoyo, ‘An Indian is an Indian is an Indian’: Tribes defend sovereignty amid attack on

Indian Child Welfare Act, I

NDIANZ.COM (Jan. 23, 2020), https://www.indianz.com/News/2020/01/23/trib

es-defend-indian-child-welfare-act.asp.

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First, the circuit court found that the definition of Indian child was not

race-based.

359

The court noted that Congress has had plenary power over

tribes since “the beginning” and that this power has always been political.

360

Further, the court found that the United States Supreme Court has been clear

in finding that classifications involving Indians and Indian tribes have always

been political and not race-based.

361

The court focused on Morton v. Mancari

in particular.

362

Using Mancari, the court reasserted the fact that Indians are

quasi-sovereign, and that when there are laws that classify them, or give

preference to them, they are political.

363

In Mancari, the Supreme Court

found that hiring preferences of Indians by the BIA was not racial, but was

“employment criterion reasonably designed to further the cause of Indian

self-government and to make the BIA more responsive to the needs of its

constituent groups. It was directed to participation by the governed in the

governing agency.”

364

Additionally, the circuit court stressed that in Marcari,

the Court recognized how important the relationship was between Congress’s

plenary power over the tribe and the “unique legal status of Indian tribes.”

365

Further, the circuit court disagreed with the district court’s reasoning in

distinguishing Mancari, and found that Mancari does in fact control.

366

The

court first noted that geographical location of Indians does not matter, as

Congress has power to regulate Indians both on and off the reservations.

367

The court went on to find that the district court was wrong in its conclusion

that the ICWA definition of Indian child was based on race, with ancestry as

a proxy.

368

The court noted that under some tribal membership laws, children

with non-native blood can in fact be eligible for membership.

369

Where a

child’s parent became a tribal member despite lack of “Indian blood,” the

child would fall under ICWA’s membership even though they are not

“racially Indian.”

370

Further, the court stated there are many children who are

“racially Indian,” such as those in non-federally recognized tribes, that would

be excluded from ICWA’s definition of Indian child.

371

Thus the circuit court

359. Bernhardt I, 937 F.3d at 426.

360. Id.

361. Id.; See e.g., Lone Wolf v. Hitchcook, 187 U.S. 553, 565 (1903); and see e.g., Antelope, 430

U.S. at 645; See e.g., Mancari, 417 U.S. 535, 552.

362. Bernhardt I, 937 F.3d at 427-28.

363. Id. at 427.

364. Id. (quoting Mancari, 417 U.S. at 553-54).

365. Id. at 426-27.

366. Id. at 427.

367. Bernhardt I, 937 F.3d at 427.

368. Id. at 428.

369. Id.

370. Id.

371. Id.

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390 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 47

found the ICWA’s definition of Indian child was political and not racial.

372

Finding that the classification was political, the court used a rational basis

review and found that the act’s definition of Indian child did not violate equal

protection.

373

The court found the act does not violate the anti-commandeering

doctrine.

374

Unlike the district court, the circuit court looked to the

Supremacy Clause in finding that enforcement of the ICWA and Final Rule

by state courts was not an anti-commandeering issue.

375

The court found that

under the Supremacy Clause, there was a difference in state courts applying

federal law, and making state legislatures and executives enforce federal

law.

376

In this case, it was state courts applying the federal law, not

legislatures, and thus the anti-commandeering principle did not apply.

377

The

court further found that the ICWA did not commandeer state agencies as the

provisions applied to both state agencies and private parties alike.

378

Finally, the Court found that section 1915(c), which allows the Indian

tribes the ability to change placement preferences, does not violate the non-

delegation doctrine.

379

The court focused on the sovereignty of the tribes in

reaching this conclusion.

380

First stating, “[t]he Supreme Court has long

recognized that Congress may incorporate the laws of another sovereign into

federal law without violating the non-delegation doctrine,”

381

the court found

Mazurie instructive.

382

Using Mazurie, the court found that because of tribal

sovereignty, tribes have authority of tribal membership and regulation of

domestic relations of its members, including Indian children.

383

As such, the

372. Bernhardt I, 937 F.3d at 428-29. The court also distinguishes Rice for several reasons here,

including (1) that Rice involved voter eligibility in a statewide election – something that application of

Mancari would not permit, (2) the ICWA definition of Indian child did not single out children solely

based on their ancestry, and (3) that unlike the statute in Rice, the ICWA was enacted by Congress to

protect Indian children and tribes.

373. Id. at 430.

374. Id. As noted above, while I did not discuss the anti-commandeering doctrine in my analysis I

will briefly summarize the Circuit court’s holding.

375. “Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.” U.S.

CONST. art. VI, cl. 2 (emphasis added).

376. Id. at 431.

377. Id. Judge Owen did dissent in relation to the commandeering argument. Id. at 442. The district

court’s finding that the ICWA violated the anti-commandeering doctrine and Judge Owen’s dissent

suggest that this particular issue will have varied opinions in the en hanc ruling. Id. at 443.

378. Bernhardt I, 937 F.3d at 432-33 (“Because both state agencies and private parties who engage

in state child custody proceedings may fall under these provisions, 1912(a) and (d) ‘evenhandedly

regulate[] an activity in which both States and private actors engage.’”).

379. Id. at 437.

380. Id. at 437.

381. Id. at 436.

382. Id.

383. Bernhardt I, 937 F.3d at 436.

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court held that section 1915(c) is not a violation of the non-delegation clause

but simply “an incorporation of inherent tribal authority of Congress.”

384

iii. Circuit Court Rehearing

After the ruling, the states and non-Indian parties requested a rehearing.

The 5th Circuit ordered the case to be reheard en banc.

385

The case was

reheard before a panel of 16 judges on January 22.

386

The Navajo Nation was

included in this oral argument.

387

It is unclear how the court will rule this time. While the Fifth Circuit

includes Indian nations located in Louisiana, Texas, and Mississippi, it has

not always ruled favorably for the Indian tribes.

388

Additionally, in the oral

arguments, many questions related blood quantum

389

were asked, which

seems to suggest the court will really focus on the equal protection issue.

Another interesting point is that prior to the most recent case, the Fifth Circuit

found that the state’s interests were more important than tribal sovereignty.

390

Once the circuit court issues a ruling, it is expected that the case will be

appealed to the United States Supreme Court.

391

The last time the Court heard

an ICWA case was in Adoptive Couple v. Baby girl, where the Court ruled

against tribal interests.

392

As noted above, in that case the Court “allowed a

non-Indian couple to adopt a Cherokee Nation girl over the objections of her

biological father, who is a citizen of the tribe.”

393

In Baby Girl, five of the

justices who ruled against the tribal interests still serve on the Court.

394

Three

Justices are no longer on the Court—Justice Kennedy, who joined the

majority, and Justices Scalia and Ginsburg, who were on the dissent.

395

It is

uncertain how the new makeup of the Court would affect the constitutionality

of the ICWA.

VI. C

ONSEQUENCES IF DEEMED UNCONSTITUTIONAL

Strictly related to Indian children and child protective services, if the act

is repealed there is a chance that, as in the past, Indian children will be

removed at an alarming rate.

396

Currently, the problem of separation of

384. Id. at 437.

385. Bernhardt II, 942 F.3d at 287.

386. Agoyo, supra note 358.

387. Id.

388. Id.

389. Id.

390. Id.

391. Agoyo, supra note 358.

392. Id.

393. Id.

394. Id.

395. Id.

396. See About ICWA, supra note 76.

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392 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 47

Indian children does persist today.

397

For instance, a 2015 report found that

these children are three times more likely to be removed from their home by

state child protective services than children of non-Native descent.

398

Additionally, when native children are adopted, over half are not placed with

their families or communities.

399

Also, the number of Native American

children that are currently in foster care is over twice the proportion of the

general public.

400

Many attribute these numbers to non-compliance with the

act—which the Final Rule was promulgated to address.

401

Logically, it flows that if the act is repealed, these numbers will increase

as there is no check on the State governments regarding Indian children. The

fact is, prior to the passage of the act, when these children were removed it

was not as a last resort but was the first step taken.

402

As in the past, social

workers may not “exhaust[e] all familial and tribal opportunities for

placement.”

403

This would result in even higher numbers of Indian children

being removed from their families and placed with non-Indian families.

Additionally, if the act struck down because Congress exceeded its power

under the Indian Commerce Clause, the entire power of Congress over Native

Americans is at risk.

404

It would not be just the ICWA that would be affected,

but other laws in Indian affairs.

405

The Indian Commerce Clause is where

Congress gets its authority to enact Indian legislation.

406

Further, if this act

were to be found unconstitutional under a violation of equal protection,

almost everything in Indian law would be subject to the same outcome.

407

Essentially, decades of protection from discrimination, imperialism, and

white supremacy would be at risk of remerging if the act were to be

repealed.

408

The tribal ability for self-regulation is at risk, along with the

ability to punish those who victimize Indians.

409

Tribal sovereignty may be

no more.

410

397. Id.

398. See Setting the Record Straight , supra note 59.

399. Specifically, a report noted that 56% were not placed with either family or community. See id.

400. Alicia Summers & Steve Wood, Measuring Compliance with the Indian Child Welfare Act: An

Assessment Toolkit, N

ATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES 4 (2013),

https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/webteam/pdf/idc1-025753.pdf.

401. Setting the Record Straight , supra note 59.

402. Summers & Woods, supra note 400, at 26.

403. Cheryl Fairbanks, New ICWA Court aims to keep Native families together, N

EW MEXICO

CENTER ON LAW & POVERTY, (Oct. 24, 2019), http://nmpovertylaw.org/2019/10/new-icwa-court-aims-

to-keep-native-families-together/.

404. See Litman & Fletcher, supra note 17.

405. Runge, supra note 178.

406. Ablavsky, supra note 37, at 1014.

407. Runge, supra note 178.

408. Litman & Fletcher, supra note 17.

409. Id.

410. Runge, supra note 178.

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VII. C

ONCLUSION

Based purely on precedent and the deference given to Congress in

relation to power over the tribes, the act is likely constitutional based on the

three potential claims that have been discussed.

411

However, if the issue is

brought before the Supreme Court, there is a chance it could be struck down

based on equal protection—if the Court does not avoid the constitutional

question. The district court’s finding that the act was unconstitutional as a

violation of equal protection was unexpected. Based on comments made in

dicta, the Supreme Court seems to have noticed there is the potential for an

equal protection claim.

412

It is unlikely the act would be found unconstitutional under the

Commerce Clause. The Supreme Court has long held that Congress gets its

plenary power from the clause.

413

However, the Court’s treatment of Indian

law could be described as “whimsical” and as such “the Court could

conceivable abolish plenary power, [although] to do so would be a dramatic

departure from centuries-old jurisprudence.”

414

The non-delegation argument is an interesting one as well. This

argument seems to have the most potential of the two above mentioned. That

is because Mazurie can easily be read to only apply to Indian’s legislating on

the reservation.

415

It would be a very straight-forward interpretation.

In the end, all eyes are anxiously awaiting the decision from the Fifth

Circuit and then the potential petition for certiorari that is expected to come

after the decision. If this case gets to the United States Supreme Court, the

decision could have an impact not just on the constitutionality of the ICWA,

but potentially all Indian legislation past and future.

411. See supra, Part IV.a-c.

412. Baby Girl, 570 U.S. at 646, 655.

413. Tweedy, supra note 249, at 472.

414. Id. at 482, n.69.

415. See Bernhardt I, 937 F.3d at 436.

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