The Supreme Court of the United States Has Upheld ICWA by a 7-2 Vote
Opinion Issued: June 15, 2023
Author: Amy Coney Barrett
Holding: Congress had the authority to create the Indian Child Welfare Act (ICWA) under Article I of the Constitution. Article I grants Congress authority to regulate commerce with Indian tribes, and this power extends to Indian affairs.
ICWA also does not violate the Tenth Amendment’s anticommandeering doctrine. ICWA’s “active efforts” and “diligent search” requirements apply equally to state and private actors. Also, ICWA imposes only ancillary recordkeeping requirements on state courts.
Finally, the challengers lacked standing to challenge ICWA on equal protection and nondelegation doctrine grounds. The individual challengers’ injury is not redressable by injunctive relief or a declaratory judgment. Texas also lacks standing to challenge ICWA under the equal protection clause and the nondelegation doctrine because its alleged injury is not fairly traceable to ICWA’s provisions.
Facts: This case is the result of three separate and consolidated child welfare and custody proceedings. The first involves a minor child, ALM, who has Navajo and Cherokee membership. ALM was put into foster care with the Brackeens, who later sought to adopt ALM. Although ALM’s biological parents did not object to the adoption, the Navajo and Cherokee Nations did, and, pursuant to ICWA, the Navajo Nation found an alternative Navajo family to adopt ALM. The Brackeens successfully adopted ALM. They now seek to adopt ALM’s sister, YRJ, but the Navajo Nation again opposed the adoption.
The second case arises from the adoption of Baby O, who has Indian tribal membership through her biological father. Baby O’s tribe, the Ysleta del Sur Pueblo Tribe, exercised its right to intervene in the adoption and proposed moving Baby O to its reservation in El Paso, Texas.
The third case arises from Child P’s adoption into a non-Indian family, the Cliffords. When Child P entered state custody, the Ojibwe Tribe agreed with Child P’s mother that Child P was not entitled to Ojibwe membership. However, two years later, the Ojibwe Tribe intervened when the Cliffords sought to adopt Child P. The state court placed Child P with her maternal grandmother to comply with ICWA and dismissed the Clifford’s adoption petition.
ALM, Baby O, and Child P’s prospective adoptive families were joined by Texas to challenge the constitutionality of ICWA. The Department of the Interior, the Bureau of Indian Affairs, and the Department of Health and Human Services were joined by several Indian tribes to defend the law.
Key Appellate Rulings:
Congress did not exceed its authority under Article I of the Constitution by enacting ICWA.
The United States Supreme Court recognized that, although Congress has no general power over family law, there are instances where Congress nonetheless has authority over matters that relate to family law. Under Article I of the Constitution, Congress has authority to regulate commerce with Indian Tribes. This power extends to not only commerce with Indian tribes but also to certain Indian affairs. The Court recognized that its precedent relating to Indian affairs is unclear, but it has continuously held that Congress’s authority is plenary but not unbounded. The challengers in this case failed to show how ICWA went beyond Congress’s bounds.
ICWA does not violate the Tenth Amendment’s anti-commandeering doctrine because ICWA applies equally to state and private actors and imposes only ancillary recordkeeping requirements on state courts.
The challengers first argued that ICWA’s requirement that any party seeking to place an Indian child into foster care or for adoption make “active efforts” to prevent removing the child from the Indian family and that their efforts were unsuccessful. According to the challengers, this is unconstitutional because it requires state officers to administer federal regulations. The United States Supreme Court held that the active efforts requirement does not violate the Tenth Amendment because it applies to “any party,” not just state governments.
Second, the challengers argued that ICWA’s requirement that state agencies perform a “diligent search” to satisfy ICWA’s placement hierarchy also violates the Tenth Amendment. The Court held that the challengers are mistaken, because ICWA does not require that state agencies perform the search. Rather, the diligent search requirement applies to both public and private parties who seek placement into foster care or adoption. Also, the diligent search requirement only requires state courts to comply with federal law by placing an Indian child according to ICWA’s hierarchy, which is consistent with the Supremacy Clause of Article VI.
Third, the challengers argue that ICWA’s requirement that state courts provide the Secretary of the Interior with a final order in an adoptive placement of any Indian child violates the Tenth Amendment. The United States Supreme Court disagreed, and explicitly confirmed that Congress may impose recordkeeping requirements related to state court proceedings without violating the Tenth Amendment. Consistent with the Court’s precedent in Printz v. United States, 521 U.S. 898 (1997), the Court acknowledge that Congress has historically required state courts to keep records of other proceedings and transmit those record to the federal government, such as under naturalization laws. The requirement to transmit records is merely a logical consequence of dual sovereignty.
The challengers do not have standing to challenge ICWA’s placement preferences under the Equal Protection Clause or the nondelegation doctrine.
The individual challengers argued that ICWA is unconstitutional because it places them, as non-Indian individuals, on unequal footing as Indian individuals when selecting the foster care placements or adoptions, which violated the Equal Protection Clause. Although this counts as an injury under Article III, the individual challengers do not have standing because their injury is not redressable by judicial relief. The individual challengers sought an injunction to prevent the federal parties from enforcing ICWA and a declaratory judgment that the provisions were unconstitutional. However, the challengers’ injuries cannot be redressed by injunctive relief against the federal parties because it is state courts and agencies that apply the placement preferences, not the federal parties. Therefore, the injury is not redressable, and the individual challengers do not have standing to challenge racial discrimination under the Equal Protection Clause.
Texas also argued that ICWA’s placement preferences violate the Equal Protection Clause and the nondelegation doctrine, but the United States Supreme Court held that Texas also lacks standing to raise either claim. States do not have standing to assert equal protection claims against the federal government on behalf of its citizens. Although Texas attempted to assert that it has standing because ICWA requires it to violate its promise to be colorblind during child custody proceedings and ICWA imposes financial injury (the cost incurred by the state to satisfy the recordkeeping requirements), the Court dismissed these arguments because they are not fairly traceable to the placement preferences. Therefore, Texas also has no standing to challenge the placement preferences.
Justice Gorsuch’s Concurring Opinion, joined by Justices Sotomayor and Jackson as to Parts I and II
Justice Gorsuch joined the majority opinion fully but wrote separately to emphasize the historical context and importance of ICWA. Citing Michigan State University College of Law Professor Winona Singel and University of Michigan Law School Professor Matthew Fletcher throughout, Justice Gorsuch illustrated the history of Indian children and family’s mistreatment at the hands of the federal government. Justice Gorsuch described how Indian Tribes were forced onto reservations and children were forced into boarding schools and separated from their families without justification or due process. Eventually, Congress implemented ICWA to attempt to remedy this past.
Justice Gorsuch also discussed ICWA’s validity under the Indian Commerce Clause. According to Justice Gorsuch, the Constitution created a careful balance between tribal, state, and federal powers. He also acknowledged Congress’s plenary - but not unbound - authority to regulate Indian affairs. Justice Gorsuch stated that ICWA’s restrictions on how non-Indians engage with Indians is at the heart of the Indian commerce clause, because “Indian commerce is hard to maintain if there are no Indian communities left to do commerce with.”
Justice Kavanaugh’s Concurring Opinion
Justice Kavanaugh joined the Court’s opinion in full but wrote separately to emphasize the importance of a later equal protection challenge to ICWA. Justice Kavanaugh agreed that the current challengers lack standing to raise a racial discrimination claim, but he stated that the issue will ultimately need to be decided by courts when it is properly raised by a plaintiff with standing because it raises significant questions under bedrock equal protection principles.
Justice Thomas’s Dissenting Opinion
Justice Thomas dissented from the Court’s opinion to “raise alarm bells” at the federal government’s attempt to regulate child welfare proceedings in state courts. Justice Thomas stated that the “smorgasbord” of constitutional principles upon which the Court upheld ICWA do not work. According to Justice Thomas, the Indian Commerce Clause is inapplicable because is applies only to commerce, the Treaty Clause is inapplicable because ICWA is not based on a treaty, and the foreign-affairs powers do not apply because ICWA applies to domestic children. Instead, Justice Thomas disagrees with the Court’s plenary power because it lacks a constitutional basis.
Justice Alito’s Dissenting Opinion
Justice Alito dissented from the Court’s opinion because decisions about child custody, foster care, and adoption are core state functions, which ICWA impermissibly interferes with. Justice Alito stressed that Congress’s authority in Indian affairs should not allow Indian tribes to sacrifice the best interests of vulnerable children to promote the tribe’s interest in maintaining tribal membership. Justice Alito acknowledged Congress’s broad authority to regulate Indian affairs, but he also stated that Congress’s power is not so broad as to disrupt the dual sovereignty system between states and the federal government.
