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The Indian Child Welfare Act Must Stand: A Letter to the Supreme Court

Dear esteemed Supreme Court Justice,


My name is Eshaan Kothari, and I am a high school student and aspiring constitutional scholar and activist. While I understand that you are incredibly knowledgeable about the United States Constitution, I will nonetheless help advise you on the pressing issue related to the Supreme Court challenge of the Indian Child Welfare Act (ICWA).


Part 1: Historical Context

Before I begin, historical context is crucial to understand the nuances of ICWA and its opposition today. Starting in the mid-eighteenth century, the United States government forcibly removed Indigenous children from their reservations to abusive boarding schools, assimilating them to a “dominant” white American culture and stealing their land (Deutch, The Atlantic). The boarding school era, marked by incredible trauma for Indigenous families, subsided by the mid-twentieth century, but its legacy lived on through the Indian Adoption Project (IAP). This project aimed to make the adoption and foster care process of Indigenous children easier for non-Native families. However, the fact that 25% to 35% of all Indigenous children were removed from their Native homes by the 1970s proves how the IAP perpetuated the detachment of Indigenous children from their Native roots (Reed, Harvard Law Today). Recognizing the US federal government’s role in separating Indigenous families, Congress, with bipartisan support, passed ICWA in 1978 (Barnes, The Washington Post). Along with establishing minimum standards that prevented removal practices, ICWA prioritized placing an Indigenous child with ties to a Native nation in the custody of their biological Indigenous family, members of their Native community, or other Indigenous families before non-Native individuals. By reforming child-custody proceedings, the federal act also ensured that Indigenous children placed with non-Native families could safely move through the adoption and foster care process (Indian Child Welfare Act, US Congress).


Part 2: Constitutional Law

Even though experts claim that ICWA is an effective child welfare policy, non-Native families, especially Christian white ones, wanting to adopt Indigenous children contested the act. With the support of three states, led by Texas, and other white families, Jennifer and Chad Brackeen’s challenge made its way to the Supreme Court under the case Brackeen v. Haaland (Deutch, The Atlantic). While other cases contesting the law have surfaced on the state level, Brackeen v. Haaland represents the most significant federal challenge to ICWA yet. Hoping to weaken ICWA’s provisions, opponents of the law argue that ICWA is unconstitutional through a twofold strategy. Firstly, challengers say that ICWA oversteps Congress’ enumerated powers in article 1, section 8 of the Constitution. Section 8, they say, only delineates Congress’ authority to “regulate Commerce…with Indian Tribes,” known as the Commerce clause, not interfere in everyday state business pertaining to Indigenous people (US Constitution, art. I, § 8, cl. 3). By replacing state agencies and child court proceedings with a federal child-placement program, Congress also allegedly violates the anti-commandeering doctrine of the Tenth Amendment. Additionally, defining “Indian” as a race, opponents believe that ICWA promotes racial discrimination against white families, violating the equal protection clause in section 1 of the Fourteenth Amendment (Brief of Petitioner the State of Texas).


Part 3: Call to Action

ICWA opponents’ arguments have held up in Texas federal district court, where Judge Reed O’Connor deemed ICWA unconstitutional under the case Brackeen v. Zinke. However, the Fifth Circuit Court of Appeals did not decisively conclude through Brackeen v. Bernhardt whether the federal government should weaken ICWA on a national level. As you know, the Supreme Court will weigh in on this decision by hearing oral arguments on November 9, 2022 (Constitutional Accountability Center). I urge you, justice, to uphold ICWA, a constitutionally sound law, to keep Indigenous children connected to their increasingly disappearing Native heritage while preserving tribal sovereignty.


To begin, opponents’ arguments against ICWA have no valid constitutional basis. Even though Congress’ only enumerated power relating to “Indians” may be the Commerce clause, ICWA framers wrote that “there is no resource more vital to the continued existence and integrity of Indian tribes than their children” (Indian Child Welfare Act, US Congress). Therefore, the act, which deals with the most important commodity for Indigenous people, falls under the Commerce clause, granting the federal government full jurisdiction to legislate Native children. Still, while the Constitution does not explicitly delineate it, the Supreme Court has repeatedly granted “plenary power” over Indian affairs to Congress (United States Brief, 42–43). Because of this absolute authority and the supremacy clause in article 6 of the Constitution, which establishes that federal legislation takes precedence over state law, Congress has the right to pass legislation pertaining to Indigenous people that state courts must enforce. Therefore, ICWA’s minimum standards that reformed state child-custody proceedings to protect Native children do not constitute commandeering of state agents nor a violation of the Tenth Amendment (United States Brief). Ultimately, these baseless arguments that claim that the federal government is encroaching on state jurisdiction with ICWA reflect how Brackeen v. Haaland is covertly a means for states like Texas to assert their authority with minimal regard for Indigenous children’s welfare (Nagle, Crooked Media).


Moreover, ICWA does not infringe on the equal protection clause of the Fourteenth Amendment. According to the amicus brief of the Navajo Nation, a defendant in Brackeen v. Haaland, “‘Indian’ in ICWA is a political status…explicitly tied to membership in sovereign tribal nations, and include no reference to blood quantum, ancestry, or race” (Navajo Nation Brief, 15). Because of this deliberate political definition of “Indian,” ICWA does not discriminate against non-Native families based on race. Still, Congress’ special treatment of Indigenous populations is justified. It is rooted in the federal government’s treaty responsibility towards Indigenous people to protect their rights, sovereignty, and children, proving how ICWA does not violate the equal protection clause. While white families might argue that ICWA prevents them from saving Indigenous children from poverty-stricken and drug-addict Native families, this white supremacist and savior idea highlights the irony in their use of the equal protection clause to contest the act. In this case, the white oppressors claim to be the victims of racial discrimination to extend their liberties, leveraging an amendment historically meant to empower actual marginalized communities. Opponents of the act fail to understand that as Native families recover from the boarding school era and its harmful repercussions, policies like ICWA are crucial to help restore Indigenous families and ensure their culture’s continued survival (Reed, Harvard Law Today).


Finally, overturning ICWA would catastrophically alter how the federal government governs Indigenous citizens, challenging tribal sovereignty. If the Supreme Court sides with the Brackeens, it will set a precedent for Congress to treat Indigenous people like any other American community, which has never been the case. Since the US recognizes Indigenous nations as sovereigns, their relationship is uniquely government-to-government. Also, to repent for the years of Indigenous oppression in our country’s history, the US Department of the Interior has a trust responsibility today to heal Indigenous communities and respect tribal self-determination on their reservations (Department of the Interior). However, governing Native people as any other US citizen would break this special relationship, fracturing Indigenous tribal law, courts, and, ultimately, sovereignty (Reed, Harvard Law Today).


For these clear and true reasons, I strongly advise you, justice, to use your power on the Supreme Court to uphold ICWA. You and your colleagues hold the future of Indigenous children, culture, and self-determination in your hands, and I trust you will make the correct choice come Wednesday.


Thank you for your time,

Eshaan Kothari

(Written November 1, 2022)

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