Supreme Court Considers Native American Preferences And Classifications

• Published date: 01 December 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Jenner & Block
• Author: Mr Ishan K. Bhabha, Lauren J. Hartz, Leonard R. Powell and Kathryn Wynbrandt

This month, the US Supreme Court heard oral argument in Brackeen v. Haaland, a case concerning the constitutionality of the federal Indian Child Welfare Act (ICWA). The challengers'individuals who sought to adopt Indian children and the state of Texas'present a broad array of objections to ICWA, including that it violates the Equal Protection component of the Fifth Amendment. The Supreme Court has long recognized that federal regulation of Indian affairs is based on permissible political classifications rather than impermissible racial ones. Nevertheless, the challengers seek to impose broad limits on the circumstances in which a federal law can permissibly single out Indians. If the Court were to adopt such limits, it would have drastic consequences for Congress's ability to fulfill its trust obligations to Indian tribes, and it likely would also have ramifications for universities, employers, and other entities that provide preferences or benefits to Native Americans or operate diversity programs that include Native Americans.

The Legal and Factual Backdrop

ICWA was enacted in 1978 in response to rising concern over abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. ¹ In the years leading up to ICWA, 25 to 35 percent of all Indian children were separated from their families and placed in adoptive families, foster care, or institutions. ² Approximately 90% of the placements were in non-Indian homes. ³

ICWA addressed these problems by, among other things, establishing adoptive placement preferences for Indian children. Absent good cause to the contrary, preference under ICWA is given to a placement with (1) members of the child's extended family, (2) members of the child's tribe, or (3) members of other federally recognized tribes.

The Supreme Court will now decide ICWA's constitutionality against a backdrop of more than 230 years of federal regulation of Indian affairs and nearly 50 years of precedent'starting with Morton v. Mancari 'expressly rejecting Equal Protection challenges to federal Indian statutes. ⁴

Mancari established that classifications based on tribal affiliation are political rather than racial classifications and thus subject only to rational-basis review in lieu of strict scrutiny. ⁵ Mancari reached that conclusion for three key reasons. First, the text of the Constitution identifies...