U.S. Supreme Court | Jim Small/States Newsroom
Speaking of a series of connected cases currently before the U.S. Supreme Court — the outcomes of which could have profound implications on tribal law and jurisdiction — University of Michigan professor Matthew L.M. Fletcher on Monday described the foundational Indian Child Welfare Act (ICWA) as a “wounded animal” that is “uniquely vulnerable” to the attack it now faces.
The ICWA is a long-standing federal law that has given protections to Native American adoptees since 1978. Implemented to prevent the unwarranted displacement of Native children, the act prioritizes Indigenous relatives and tribal communities for a child’s placement before non-Indigenous adopters.
It now faces its first significant legal challenge. The central issues in Brackeen v. Haaland, Haaland v. Brackeen, Cherokee Nation v. Brackeen and Texas v. Haaland, all currently playing out before the U.S. Supreme Court, are constitutional questions brought by white foster parents in Texas who ran into ICWA-induced roadblocks while attempting to adopt Indigenous children.
Fletcher, who is also the tribal court chief justice of the Pokagon Band of Potawatomi Indians and the Poarch Band of Creek Indians as well as being a citizen of the Little Traverse Bay Bands of Odawa Indians (LTBB) himself, described the decades before ICWA as an “epidemic” of Indian children being removed from their families.
“About 25 to 35% of all native children, as of the mid 1970s, were removed by state organizations, state agencies, state courts and religious organizations, through formal and informal means,” Fletcher said.
Fletcher and fellow University of Michigan law professor Leah Litman spoke at the university on Monday for an Indigenous Peoples’ Day talk about the ICWA sponsored by the Native American Law Students Association.
Both professors spoke about how, depending on how the right-wing court rules, ICWA could be drastically altered or even toppled, resulting in a potentially profound effect on Indian law.
Litman broke down the three main challenges to ICWA, as argued by the plaintiffs:
- Commerce clause: The federal government and Congress didn’t have the authority to enact the statute under the powers delegated to it by the U.S. Constitution.
- Anti-commandeering Doctrine: The ICWA violates the U.S. Constitution’s 10th amendment — “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
- Equal Protection: The ICWA unconstitutionally discriminates on the basis of race, violating the Equal Protection Clause of the 5th Amendment.
The ICWA could survive even if the court decides that The act is commandeering, Fletcher predicts, as a 10th Amendment ruling wouldn’t be “as profound on Indian law.”
Litman called both the 10th Amendment and 5th Amendment arguments “wildly out of step with existing cases” — but the results of an Equal Protection ruling, she said, “would be extremely dramatic and profound and really unsettle the foundations of what everyone understood to be the law in the perpetuity.”
“For the other side to be correct on Equal Protection arguments, you would have to throw out a lot of Indian Law,” Fletcher added.
“Yes, tribal membership is often rooted in race and ancestry [and] ethnicity, but there’s a political relationship that exists that’s unique involving Indian tribes,” Fletcher said.
He compared Native Americans to “diplomats” because tribes are the only entities that have a treaty-based relationship with the United States government within the country.
If the Supreme Court rules in favor of the plaintiffs and the state of Texas by saying the statute was unconstitutional, Fletcher said it would be “an attack on all of Indian law.” The first thing that would go away in this case, he thinks, would be “everything related to Indian Country criminal jurisdiction.”
Criminal jurisdiction on Native lands is already a complex issue that has faced its own legal fights in recent years.
There's no reason to gut Indian Country criminal jurisdiction because you want three white families to have Indian kids.
– University of Michigan professor Matthew L.M. Fletcher
“There’s no reason to gut Indian Country criminal jurisdiction because you want three white families to have Indian kids,” Fletcher said.
Litman noted that Michigan has its own version of this law, the Michigan Indian Family Preservation Act (MIFPA), which runs parallel to ICWA and fills in some gaps for the state. Guidelines for that law were created and implemented by Allie Greenleaf Maldonado, chief judge of the Little Traverse Bay Bands of Odawa Indians Tribal Court and an LTBB citizen.
Fletcher predicts that someone like Republican-nominated Justices Clarence Thomas or Samuel Alito will write the opinion, calling them “the most radical justices in the history of the Supreme Court.” He and Litman said they do not expect Justice Neil Gorsuch — a Republican-nominated justice who has previously ruled in support of tribal sovereignty — to write the majority opinion.
“ICWA has always been [like] a wounded animal … it is uniquely vulnerable to this kind of attack,” Fletcher said. He added that he is “intimately connected” with people involved in the cases, and says he perceives that “the other side has absolutely no ethical or moral limits to what it will do.”
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