Well, you can't say that my new book, Classified: The Untold Story of Racial Classification in America, was not well-timed. Last week, the Supreme Court took up the issue of affirmative action in admissions, and directly addressed the question raised in my book as to whether the classifications are too incoherent to be a justified basis for an asserted compelling interest in diversity.
Yesterday, the Supreme Court held oral arguments in Brackeen v. Haaland on another issue discussed in my book, the question of "Indian" identity under federal law. The case involves a challenge to the constitutionality of the Indian Child Welfare Act. The plaintiffs argue that the Act is unconstitutional because it illegally commandeers state courts to enforce federal law, and because it imposes a racial classification that violates the equal protection component of the Fifth Amendment's Due Process clause.
My view is that the law is unconstitutional at least for the latter reason, as I explain below. I reviewed the transcript of the oral arguments from yesterday, and I think the plaintiffs' attorneys failed to get across one key point as to why the case is distinguishable from the leading precedent of Morton v. Mancari. In the latter case, the Court held that tribal membership is a political, not a racial, classification. This allowed the allowing individuals to assert tribal membership to gain a preference in employment with the Bureau of Inidan Affairs.
ICWA is intended to protect Indian families from having their children unjustly taken away from them by non-Indian courts. However, under ICWA, by contrast, the federal government can impose Indian identity on a child against the parents' wishes, even when the child is not a member of the tribe. And it can do for the benefit not of the child, but of either the tribe or even Native American demographics writ large. Surely there is a distinction between allowing a liberal definition of "Indian" to provide an employment benefit and imposing an even more liberal definition of "Indian child" to the child's detriment on a child who may have no cultural or other connection to any Indian tribe beyond that one parent is a member and the child is eligible for membership. Anyway, here is my analysis:
There are several things that distinguish ICWA from the situation in Mancari.
First, in Mancari and like-minded cases, the government was providing a benefit to an individual if he or she was a tribal member.
ICWA, by contrast, often requires special measures for tribal members that are to their disadvantage, but that are seen to be advantageous to their tribe or to the Indian community in general. For example, for non-Indian families, parental rights can be terminated for sufficiently abusive behavior proven by "clear and convincing" evidence. Indian children, by contrast, cannot be removed from their parents unless the government can prove "beyond a reasonable doubt," based on expert witness testimony, that the child is in critical danger. This may be beneficial to the Indian community at large by keeping more children connected to their Indian culture, but it's dangerous for the child.
Second, while Mancari involved an individual who chose to assert Indian status, under ICWA Indian status, and the legal ramifications of that status, are imposed on a child and the child's family. Even parents who are willing to relinquish their tribal membership cannot escape ICWA's jurisdiction over their children. In a 2016 case, the Oklahoma Supreme Court held that the Cherokee Nation's interest in moving a child from a non-Indian foster home to an ICWA-compliant one outweighed both birth parents' wishes. This was so even though one birth parent was not an Indian, and the Indian birth parent had filed paperwork to unenroll from the tribe. ICWA was intended to help Indian parents who did not want their children adopted outside their tribe. In practice, however, ICWA allows tribes to intervene in custody proceedings against the parents' explicit wishes, even when one parent is not Indian and the other does not wish to be considered one.
Third, and relatedly, ICWA requires courts, with limited exceptions, to override the normal best interests of the child standard in custody matters in favor of a blanket presumption that it is in the best interest of the Indian child to be placed with Indian adults. Again, it's one thing to allow someone to claim a benefit based on Indian tribal membership, it's another thing to impose a harm on a child because the government wants to help the Indian nations retain their members.
While placement with Indian adults can be overriden for "good cause," in practice there is still a different standard for children deemed Indian and other children. California and Texas courts have explicitly said that there are two different best interest standards: an individualized one for white, black, etc., kids, and an "Indian best interests" standard,
Importantly, even if one concluded that the special status of Indian nations allows the federal government to overrule normal state child welfare rules for Indian children, ICWA has a bizarrely overbroad definition of "Indian child." Unlike a case in which someone steps forward to claim tribal membership, whatever their overall ethnic heritage breakdown may be, ICWA applies to any child deemed an Indian even if one parent is not an Indian at all, the other parent is only a fraction of Indian heritage, and the family has no significant cultural ties to the relevant Indian tribe. Why is such a child deemed an Indian and only an Indian, when, for example, the child may be 255/256 European? This makes ICWA look more like a one-drop rule racial classification than like a political one meant to protect Indian tribal sovereignty.
Not only that, but the child is deemed an Indian even if the child isn't a member of any tribe, so long as one parent is a member, and the child is eligible for membership. But if the child isn't a member, it's not at all clear how the Indian classification can be deemed political rather than racial.
Finally, perhaps the oddest and most racialist part of ICWA is that if the child's tribe declines custody, the law gives a custody preference to Indians who are members of any other tribe that wishes to claim the child. The federal government has argued that many tribes have deep historical connections with each other. The plaintiffs rejoined in this case that many tribes are entirely culturally distinct. Moreover, tribes that do have historical ties, such as the Hopi and Navajo, were often enemies. Essentially, ICWA treats the tribes not as individually sovereign political entities, but as subdivisions of a broad racial classification.
So under ICWA, you could have the following scenario. A man, John Smith, with 1/1024 Cherokee heritage discovers when his father dies that his father had membership in the Cherokee tribe. To honor his father, he applies for Cherokee membership and gets it. Beyond that, he has no cultural or other ties to the Cherokee tribe, and his membership has no impact on his day to day life. Ten years later, he marries a woman who is an immigrant from China. They soon have a baby girl. When they write their will, they ask that if they both die, custody of their girl be given to their very close friends, the Chins, who are both Chinese. Their will notes that they trust the Chins implicity, the Chins have agreed to take custody of the girl should it be necessary, and that it's very important to the couple that the girl be exposed to her Chinese heritage, which the Chins will do.
A few years later, the Smiths die in a tragic auto accident. The Chins take their daughter in, and move to adopt. However, before the adoption can become final, a state child welfare official learns that Mr. Smith was a member of the Cherokee tribe, and thus his daughter is eligible for membership. As required by ICWA, the Cherokee tribe is contacted. The tribe declines to intervene, but, because the Chins live in Arizona near the Navajo reservation, their attorney contacts the Navajo tribe. The Navajo tribe's attorney intervenes, arguing that the court should place the girl with a Navajo family so she "doesn't lose touch with her indigenous heritage." While the state could could ultimately decide to place the girl with the Chins, a judge will have to first overcome the law's presumption that the child should be placed with a Navajo family. This strikes me as insanely racialist.
For all these reasons, I think that ICWA quite obviously in practice is based on imposing a racial classification even on families who do not wish to be so classified. It imposes burdens on families and children in which one parent happens to have inherited tribal membership based on that parent's racial heritage. A more narrowly tailored law, focusing on protecting Indian parents who affirm their Indian identity from having their child's fate determined by non-Indian courts to the detriment of their Indian heritage, might well be constitutional. This law is not.
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