The Supreme Court will hear arguments next month about the constitutionality of the Indian Child Welfare Act (ICWA), a 1978 federal law that establishes a separate, less-protective set of rules to govern child welfare and adoption cases involving what ICWA calls “Indian children.” The Brackeen case is complicated—it resulted in more than 300 pages of opinions by the court of appeals—but it turns on two simple constitutional questions.

The first is whether ICWA qualifies as a race-based law, subject to the “strict scrutiny” test (which virtually no law ever passes), or whether it instead falls under the precedent of Morton v. Mancari, which said tribal affiliation is a “political” rather than a “racial” category, and that laws treating tribal members differently than non-members are subject to the more lenient “rational basis” test.  The second is whether ICWA intrudes on state government prerogatives in a manner forbidden by the “anti-commandeering” principle, which says states must obey federal laws, but cannot be forced to implement them. I will address that in a later blog post.

The “race” issue turns on ICWA’s definition of “Indian child.” ICWA is unique in this respect; other Indian laws apply to people who either live on tribal lands or are tribal members, but ICWA specifically does not apply on tribal lands, and its definition section says it applies not just to tribal members but also to children who are “eligible” for membership and have a “biological parent” who is a member. Eligibility rules differ from tribe to tribe, but they all define eligibility solely by biological ancestry. Consequently, children with no cultural, political, or social connection to a tribe—and who, in fact, may never become tribal members—nonetheless are subject to ICWA based solely on the blood in their veins. Conversely, the “biological parent” requirement means that even a child who is fully acculturated to a tribe will not qualify if she’s adopted. Thus ICWA is triggered exclusively by biology, not political, cultural, or social relationships.

ICWA’s restrictions on who may adopt an “Indian child” are also race-based.  The act’s placement preferences say “Indian children” must be adopted by “Indian families” (rather than white, black, Asian, or Hispanic families) regardless of tribe—meaning a child of, say, Inuit heritage must be adopted by a Cherokee or Penobscot or Seminole family, regardless of the enormous differences in the culture and history of these tribes. The bottom line is simple: ICWA differentiates between children based not on tribal affiliation, but on generic “Indianness.” The Court even admitted this in a 1989 case which said ICWA was intended to keep these children “in the Indian community”—not necessarily the tribal community. Yet the notion of generic “Indianness” is a racial category, not a political one, and therefore falls outside the boundaries of the Mancari precedent.

Defenders of the ICWA status quo argue that ICWA isn’t race-based because it doesn’t apply to all Native American children: one who would otherwise be eligible for membership, but lacks a biological parent who is a tribal member, won’t qualify as an “Indian child” under the act. But in Rice v. Cayetano, the Court said that “simply because a class defined by ancestry does not include all members of the race does not suffice to make the classification race neutral.” That makes sense: a law that applied only to left-handed black people would still be race-based, despite not applying to right-handed black people.  And Rice defined a racial category as one “which singles out ‘identifiable classes of persons . . . solely because of their ancestry or ethnic characteristics.’” ICWA certainly does that.

In Mancari itself, the Justices declined to address whether a law “directed towards a ‘racial’ group consisting of ‘Indians’” could be upheld. Given its overwhelming focus on biology rather than social or political affiliation, it seems clear that ICWA falls on the wrong side of the line.

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