Haaland V. Brackeen: The Decision That Threatened the Indian Child Welfare Act's Protections of Native Families in Illinois

Details: By Kennedy Ray Fite; Parent Category: Basic Needs; Category: Family, Children and Adoption; 11 November 2023; Hits: 995

Abstract

Excerpted From: Kennedy Ray Fite, Haaland V. Brackeen: The Decision That Threatened the Indian Child Welfare Act's Protections of Native Families in Illinois, 54 Loyola University Chicago Law Journal 1109 (Summer, 2023) (449 Footnotes) (Full Document)

KennedyRayFite Years before the enactment of the Indian Child Welfare Act (“the ICWA”), John Dall was taken at the age of three from his Native American mother and placed in non-native foster homes throughout Illinois. After surviving abuse in eight foster homes, John was placed into a non-native home where he had no connection to his Ho-Chunk native culture or tribal community. In his explicit support for the ICWA [Indian Child Welfare Act ], John described the deprivation of tribal connection throughout his childhood as “identity theft.” Unfortunately, John's story is just one of many in the long American history of removing native children from their families. By the 1970s, 25 percent of native children were no longer in their familial home and tribal community, but rather residing in non-native foster homes, adoptive homes, or boarding schools. To combat this “cultural genocide” and “prevent the breakup of Indian families,” Congress drafted the ICWA [Indian Child Welfare Act ] that has since been upheld by Illinois courts, a state with its own history of Native American discrimination and native child removal.

However, since its enactment in 1978, the ICWA [Indian Child Welfare Act ] has faced numerous claims that its placement preferences violate the Equal Protection Clause of the Fourteenth Amendment. These placement preferences require that any “Indian child” removed from their native family must be placed with “(1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.” Contentiously, an “Indian child” under the act is “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” This definition has been emphasized by critics as applying the statutory preferences only to a subset of children who are “eligible for membership” in Native American tribes and not to those children ineligible for that affiliation. Thus, the application of the ICWA [Indian Child Welfare Act ]'s minimum federal standards have caused many to challenge its constitutionality.

While numerous attempts at challenging the ICWA [Indian Child Welfare Act ] have been unsuccessful, in 2018, a Texas federal district court caused a contentious debate when it found the placement preferences in the ICWA [Indian Child Welfare Act ] to be in violation of the Equal Protection Clause. The plaintiffs included non-native foster parents to a native child covered by the ICWA [Indian Child Welfare Act ] who faced problems with the statute's placement preferences during an attempted adoption. After an appeal, a panel consisting of three judges from the United States Court of Appeals for the Fifth Circuit reversed the decision in favor of upholding the ICWA [Indian Child Welfare Act ] as constitutional. Yet, in a rehearing of the case en banc, the Fifth Circuit narrowly affirmed the constitutionality of the ICWA [Indian Child Welfare Act ]'s placement preferences. Unsurprisingly, the Supreme Court consolidated four petitions and granted a writ of certiorari to review the constitutionality of the placement preferences for native children required by the ICWA [Indian Child Welfare Act ]. Ultimately, the Supreme Court held in Haaland v. Brackeen that the petitioners did not have standing to bring an equal protection claim, so consequently, it did not reach the merits of the equal protection analysis. This Note will argue that if it must determine the merits of an equal protection claim in the future, the Supreme Court should find the ICWA [Indian Child Welfare Act ]'s placement preferences to be constitutional to maintain the protections afforded to native families through Illinois's precedent.

Part I of this Note will first briefly discuss the history of the ICWA [Indian Child Welfare Act ] and the native family separation that led to its enactment in 1978. Then, it will examine the Fourteenth Amendment's Equal Protection Clause and how the Supreme Court has handled equal protection claims against federal legislation regarding Native American tribes. Centering on Illinois, this Note will also discuss the history of Native Americans in the state, including the active role Illinois played in native family separation and its precedent upholding the ICWA [Indian Child Welfare Act ] as constitutional. Part II will provide a description of the claims heard by the Supreme Court in Haaland v. Brackeen and the case's procedural history including the district court's rationale in finding the ICWA [Indian Child Welfare Act ] to be unconstitutional and the Fifth Circuit's reversal. Part III will show that Illinois courts have properly held that the native children covered by the ICWA [Indian Child Welfare Act ] are not a suspect class, and that the ICWA [Indian Child Welfare Act ] satisfies rational basis review because the placement preferences are rationally related to its three legitimate purposes. However, recognizing that the Supreme Court may find native children to be a suspect class in the future, this Note also argues that the ICWA [Indian Child Welfare Act ] withstands strict scrutiny because the preferences are narrowly tailored to furthering the statute's compelling purpose.

Part IV will detail the devastating consequences that could come to fruition if the Supreme Court finds the ICWA [Indian Child Welfare Act ]'s placement preferences to be unconstitutional. Not only will it encroach upon the rights of native children and cause irreparable mental and physical health challenges unique to native children living in Illinois, but it will also decrease the vital recognition of tribal sovereignty and threaten tribal existence. Finally, this Note will briefly conclude by recognizing the extreme weight of the Supreme Court's decision in future equal protection claims against the ICWA [Indian Child Welfare Act ] on each native child living in Illinois and will provide a final argument for the Court to find the ICWA [Indian Child Welfare Act ]'s placement preferences to be constitutional.

[. . .]

At forty-three years old, John Dall recognizes the detrimental consequences resulting from removal from his Ho-Chunk tribal community. With disappointment in his voice, he has said, “I got started late ... I lost a lot of years.” Not wanting his children to feel the same loss, John has actively worked to immerse his children into the Native American culture starting with the tribal communities in Illinois. While he is now fully immersed in his Ho-Chunk culture and volunteering in a Chicago neighborhood to serve the 230 Ho-Chunk people living in Illinois, John's struggles could have been mitigated by applying the ICWA [Indian Child Welfare Act ]'s placement preferences. Through the statute's minimum federal standards, an “Indian child” who has been removed from their home must be placed with (1) a member of the child's extended family, (2) other members of the child's native tribe; or (3) other native families.

While this statute has been upheld for decades in Illinois as constitutional, the Supreme Court of the United States threatened to eliminate its protection against native family separation in its review of Haaland v. Brackeen. The case originated from a Texas district court finding of the ICWA [Indian Child Welfare Act ]'s placement preferences as an unconstitutional racial classification unable to withstand strict scrutiny, a holding that was later reversed by the Fifth Circuit on the grounds that the statute created a political classification satisfying rational basis review. Ultimately, the Supreme Court determined that the state of Texas and the individual petitioners did not have standing to bring an equal protection claim. Therefore, it will review the merits of an equal protection claim against the ICWA [Indian Child Welfare Act ] in the future.

In such an instance, if the Supreme Court incorrectly agrees with the district court, it will have devastating consequences on both native children's mental and physical health and tribal communities as a whole in regard to a lack of recognition of tribal sovereignty and threating tribal existence by separating potential members. However, if the Supreme Court were to correctly agree with the Fifth Circuit and Illinois precedent to uphold the statute, it would be consistent with all other nations who agree that native children are entitled to a Native American cultural identity. Therefore, after reviewing future equal protection claims, the Supreme Court should find the ICWA [Indian Child Welfare Act ]'s placement preferences to be constitutional to maintain the protections afforded to native families through Illinois's precedent.

J.D. Candidate, Class of 2024, Loyola University Chicago School of Law; Fellow, Civitas ChildLaw Center.

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