Nov 30, 2022

The Indian Child Welfare Act.

The Indian Child Welfare Act.
Photo by Documerica / Unsplash

It's one of the most complex cases Tangle has ever covered.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 15 minutes.

Today, we're covering one of the most complex stories Tangle has ever seen: The Indian Child Welfare Act of 1978. Hence our unusually long read time. But (I promise) it's worth it. Plus, we've got a question about why same-sex marriage may become law while codifying abortion rights hits the back burner.

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Quick hits.

  1. Oath Keepers founder Stewart Rhodes was found guilty of seditious conspiracy, obstructing the certification of the election during a joint session of Congress on Jan. 6 and of destroying evidence in his case. He faces up to 60 years in prison on the combined three counts. (The charges)
  2. Between 400 and 500 migrant workers died during the preparations for this year's World Cup, according to a Qatari official. (The deaths)
  3. After nearly two days under a boil water advisory, Houston lifted the notice on Tuesday morning. (The advisory)
  4. Congress is expected to pass legislation that will force freight-railway workers to accept a union contract many rejected in order to avoid a strike that could cost the country $2 billion per day. (The strike)
  5. Universities in Beijing and Shanghai sent students home a day early ahead of the Lunar New Year, in what many perceived as an effort to tamp down protests against zero Covid policies. (The break)
  6. Bonus: The United States beat Iran 1-0 in the World Cup yesterday, earning them a second place finish in Group B. They will face the Netherlands on Saturday in their first bracket game since 2014. (The win)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.

Today's topic.

The Indian Child Welfare Act (ICWA) of 1978. Earlier this month, the Supreme Court heard oral arguments in a challenge to the law that gives preference to Native Americans who want to adopt and foster American Indian children. The conservative wing of the court seemed divided on how to navigate a challenge to the law, and many court watchers believe it will stop short of striking it down entirely.

The background: ICWA was created out of concern that American Indian children were being taken from their families and placed in non-tribal adoptive homes or care. In the 1800s, the federal government had a pattern of removing Native American children from tribes and sending them to boarding schools in an effort to promote assimilation. Those separations continued into the mid 20th century, with state courts often accepting arguments that children were being neglected or abandoned by their tribes as justification for placing them with non-Native families.

Some studies showed that as many as 35% of all native children were being separated from their families, so Congress created a law that insisted states placing an American Indian child for adoption give preference to a member of the child's extended family, followed by a member of the child's tribe, and then by members of other Native American families. Under ICWA, tribal courts have jurisdiction over child custody proceedings involving Native children who live or have their permanent address on native land. In state court, for native children not living in tribal lands, the preferences created under ICWA apply.

The challenge: The case before the Supreme Court is Haaland v. Brackeen (which also consolidates three other cases). Three non-Native couples and the biological mother of an American Indian child are challenging the law. In one case, Texas parents Chad and Jennifer Brackeen have already adopted a Navajo Nation child and are trying to adopt his sister, but the tribe sought Navajo placements. The Biden administration, led by the first Native American Secretary of the Interior Deb Haaland, has joined the defense of the ICWA.

The challengers say ICWA introduces four main Constitutional issues. We've listed them below, along with the defense's rebuttals.

1) The ICWA exceeds the power the Constitution gives Congress, which authorizes Congress to regulate commerce involving tribes. Children are not articles or instrumentalities of commerce.

The rebuttal: The Constitution gives Congress the power to regulate Native American affairs broadly, including all interactions between Native Americans and non-Native Americans.

2) The ICWA violates the Constitution's guarantee of equal protection, which bars the government from discriminating based on race, gender or ethnicity.

The rebuttal: The ICWA is using political distinctions like membership in a tribe, not race or ethnicity.

3) The ICWA violates the 10th Amendment's anti-commandeering doctrine, which bars the federal government from requiring states and state officials to enforce federal law.

The rebuttal: Treatment of Native American children is in the federal government's purview, and ICWA simply provides rules for state courts to apply in cases involving Native American children.

4) The ICWA unconstitutionally allows tribes to adopt their own order of preferences in state court for the placement of children, which gives legislative power to the tribes over state courts.

The rebuttal: The ICWA does not delegate power, but incorporates the tribes’ own preferences into federal law.

Today, we're going to explore some commentary from the left and right about this case, as well as how the ICWA is serving Native children. Then my take.

What the left is saying.

  • Many on the left support the ICWA, arguing that it has become the gold standard in all adoption proceedings.
  • Some argue that Native tribes still struggle to keep their children from being taken, and the ICWA grants them proper protections against that.
  • Others say the law is Constitutional in the context of longstanding federal government cooperation with Native American tribes.

In the Seattle Times, Leonard Forsman, chair of the Suquamish Tribe, argued that the Indian Child Welfare Act is needed to protect Native American children from a "return to the dark ages."

"ICWA assures that a Native American child’s extended families and other qualified members of their tribe have an opportunity to care for a child whose parents are not able to raise them," Forsman said. "If the child is placed with non-Natives, ICWA assures that their tribe can keep them connected to their community and culture, and can check in on their well-being. And this means that their rights as citizens of sovereign Indian nations are also protected. To implement these policies, tribes have developed child welfare agencies that have been effective and compassionate at overseeing the best interest of the children, winning a ‘gold star’ rating from 31 non-Native child welfare organizations.

"Those challenging the law say it is race-based discrimination. It is not. The Indian Child Welfare Act is founded in our sovereignty as nations with spiritual and cultural connections that precede the founding of the United States by thousands of years, confirmed by treaties, legal precedents, Congressional action and federal recognition," he writes. "We have the right to make laws and enforce them, to govern ourselves and to see to the welfare of our families and children... Even with ICWA, Native children are removed from their homes at four times the rate of non-Natives — even when the family situation is the same."

In The Nation, Rebecca Nagle argued that the non-Native parents shouldn't even have standing to sue, given that they successfully adopted the children in question.

"Normally, to have standing in a federal lawsuit, a plaintiff has to prove, among other things, that they experienced harm as a direct result of that law and that winning the lawsuit would fix that harm. The harm the Librettis [non-Native parents in a case] claim is not that ICWA prevented them from adopting Octavia, but that it made the adoption harder. This claim is a little odd; it’s like a white college student suing a university over its affirmative action policy—after the student was accepted by the school," Nagle said. "The narrative that ICWA disadvantaged the Brackeens, Cliffords, and Librettis is an upside-down version of the truth... all the Native children had an extended family member who wanted to raise them. Every Native relative got pushback.

"The Brackeen case is a test for the Supreme Court. And everyone concerned about the integrity of the high court should be watching," she wrote. "Will the court follow decades of court precedent and centuries of federal law that say Native Americans are a political, not a racial, category? Will the court follow the rules of civil procedure and challenge whether the individual plaintiffs have legal standing? And will the court seek out the truth in a case where plaintiffs misrepresented the underlying facts? Given the court’s very mixed decisions on tribal sovereignty in the past three terms, it’s difficult to say. Whatever the outcome, Haaland v. Brackeen will either demonstrate that the court is still tethered to federal law, court precedent, and the rules of civil procedure—or it will show that the court is so unmoored that even the truth no longer matters."

In Slate, Mark Joseph Stern said the originalist argument against ICWA is not just dubious but "objectively false."

“In 1787, the Framers needed to provide a solution to various problems created by the Articles of Confederation, including challenges around Indian affairs,” Stern wrote. “The articles had tried to split authority over tribal relations between the states and the federal government, and the result was a disaster. Some states, for instance, refused to comply with treaties between the federal government and tribal nations, leading to violent conflicts over white settlement on Indian land," he wrote. "To resolve this, the new Constitution handed all authority over Indian affairs to the federal government. It gave the government broader treaty and war powers—which, at the time, was crucial to tribal relations—and removed those powers from the states. It also gave Congress the ability to “regulate commerce” with “the Indian tribes.” (This is called the Indian Commerce Clause.) From George Washington’s administration onward, the federal government interpreted its constitutional powers to encompass exclusive authority over Indian affairs.

“In short, ICWA takes a federal power that was long used to break up Native communities and uses it to keep them together, instead,” he said. “Why, then, is it under fire at the Supreme Court? Because in recent years, Republican lawyers, activists, and judges have put forth a revisionist history of the Constitution that denied Congress’ clear authority to regulate Indian affairs. Their first argument claims that ICWA violates equal protection by using race-based classifications—even though it looks not at race but at tribal membership, which the Supreme Court has long identified as a permissible “political” classification. Their second argument is that ICWA exceeds congressional power, an idea that would’ve been unthinkable before the concerted conservative effort to lend it plausibility... Rarely in constitutional law does the history point so clearly in one direction.”

What the right is saying.

  • Many on the right criticize ICWA, saying it was introduced with good intentions but has produced horrid results.
  • Some call out the frightening stories of Native children forced into the custody of abusive parents.
  • Others argue that the law violates the Constitution, particularly by exceeding its authority over regulating Indian commerce.

In The Washington Post, George Will described the "brutal race politics" of the Indian Child Welfare Act.

"Lexi lived four of her first six years with a non-Native American California foster family, but because she is 1/64th Choctaw, tribal officials got her taken from the Californians and sent to live in Utah with a distant relative. On Friday, the Supreme Court will consider whether to hear a challenge to the law that made this possible — the Indian Child Welfare Act, which endangers many young Native Americans," Will wrote. "It also is a repudiation of the nation’s premise that rights are inherent in individuals, not groups. In 1978, before 'Native Americans' became the preferred designation for Indians, but when racial 'identity' was beginning to become the toxic political concept it now is, Congress enhanced tribal rights. This violated, among other principles, those of federalism: Congress thereby reduced the right of states to enforce laws on child welfare. And it plunged government deeper into making distinctions solely on the basis of biological descent.

"The ICWA, an early bow toward multiculturalism, buttressed tribal identities by strengthening tribal rights. For example, tribes can partially nullify states’ powers to intervene against tribal parents’ abuse [or] endangering children. And the ICWA conferred rights on tribes, rights adjudicated in tribal courts, including the right to require Native American children be adopted by Native Americans," Will wrote. "Equal protection of the laws? Not under ICWA. Chief Justice John G. Roberts Jr. has asked, 'Is it one drop of blood that triggers all these extraordinary rights?' Indeed, the primitive concept of racial 'blood,' recast as DNA, triggers tribal rights and extinguishes a state’s right to protect many children’s rights. Sometimes with dire consequences.

In National Review, Timothy Sandefur said however well-intentioned the ICWA was, it is now a major obstacle to protecting at-risk children.

"The ICWA’s unconstitutionality starts with its definition of 'Indian child.' Unlike all other Indian laws, which apply to residents of tribal lands or to tribal members, the ICWA applies outside of tribal lands, and to kids who are only 'eligible' for tribal membership — even if they never become tribe members," Sanefur wrote. "Every tribe has different eligibility rules, but all are predicated exclusively on biological ancestry. That means that even children with no cultural, political, or social connection to a tribe — who speak no tribal language, don’t practice a Native religion, and have never visited a reservation — are deemed 'Indian' under the ICWA, whereas children who are fully acculturated with a tribe are not, if they lack the biological pedigree necessary for tribal membership.

"Equally problematic is the ICWA’s rule governing the termination of parental rights. If a child of any other race is being beaten by a parent, the state can terminate that parent’s rights over the child — thus freeing her for adoption — by offering 'clear and convincing' evidence that she’s being harmed," Sandefur wrote. "But the rule for Indian children is different: Parental rights cannot be terminated without evidence 'beyond a reasonable doubt,' in addition to expert-witness testimony. That’s a higher standard than applies even in criminal cases (where expert testimony isn’t required)... The ICWA also imposes race-based restrictions on foster care or adoption for Indian children, requiring them to be placed in 'Indian' homes — even if those homes are of a different tribe — rather than with families of different ethnicities."

In Reason, Lorianne Updike Toler points to "deep academic fissures over the historical context of the Indian Commerce Clause."

"Unknown to the Court and most of academe is the root cause of all the confusion: that the Constitutional Convention initially forgot (and then later intentionally excluded) the Articles of Confederation's Indian Affairs Clause in the Constitution," she said. "But James Madison remembered. It was he who suggested Indian Affairs be inserted back into the Constitution. This time, the Committee of Detail intentionally excluded the Clause, instead inserting ‘Tribes’ into the Commerce Clause. No one objected... Presumably, the Convention thought Congress' previous powers under the Article's Indian Affairs were addressed by the Indian Commerce Clause and other provisions of the Constitution—such as the power to declare war and peace and the president's shared Treaty Power.

"What does this mean for the Constitution? Put simply, Congress has no Indian Affairs power, and therefore no plenary power," she wrote. "Early assertion of this power was justified under the tripartite powers of Indian Commerce, War and Treaty Powers. But Congress halted tribal treaty-making long ago. If it wants to re-assert power over tribes beyond the Commerce Clause, the President needs to begin treating with tribes again. Tribal sovereignty is to tribes what federalism is to the states. Powers not reserved by the Constitution to Congress and the President revert to the tribes. This would mean that Congress lacked constitutional power to pass ICWA, however well-intentioned... Unless related to its Indian Commerce power (and heaven forbid if we have arrived at treating adoption of babies and children as commerce), Congress has no power over Native American adoptions."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. It is meant to be one perspective amid many others. If you have feedback, criticism, or compliments, you can reply to this email and write in. If you're a paying subscriber, you can also leave a comment.

  • This is one of the most complicated editions of Tangle I've ever worked on.
  • My feelings on the law's constitutionality, and how "good" it is, are totally torn.
  • Ultimately, the best case scenario might be a narrow ruling striking down the eligibility portion of the ICWA.

When I was doing research for this piece, I was overcome with the feeling that it was one of the most complicated and difficult editions of Tangle I had ever written. We're publishing it months after opinion pieces were published and over three weeks after oral arguments took place because it has taken me this long to really get a firm grasp on the details at hand.

It got so complicated and challenging that, out of curiosity, I literally searched "most complicated Supreme Court cases ever," which turned up a result for this story, in which former Supreme Court justice Antonin Scalia called a similar but separate case around the Indian Child Welfare Act the most difficult case he had ever handled. I was relieved to know I was in good company. Defining the boundaries of tribal sovereignty might be the most complex area of federal law I’ve ever encountered, one made even more emotionally charged when you add in the welfare of children.

As with most Supreme Court cases, there are two threads of argument: Is this law effective and is it constitutional?

In this case, I'm completely torn on both questions.

Is the law doing what it’s supposed to? In every single source I found that was directly tied to experts in adoption and foster care, the ICWA was described as the new "gold standard" in adoption proceedings. Separate from its constitutionality, experts consider it a precursor for modern day practices where kids are intentionally placed in homes tied to their families or communities, where studies have shown they tend to have better outcomes. ICWA has the endorsement of 24 bipartisan state coalitions and 26 child welfare organizations, including the American Academy of Pediatrics and the American Medical Association, as well as the American Psychological Association.

Not only that, but the law was created to combat one of the most pervasive and tragic evils the United States federal government has ever perpetrated. The forced removal and "assimilation" of Native children is a nauseating piece of American history. Stories abound of states seizing tribal lands illegally, selling those lands off, then stealing Native children and shipping them to boarding schools to be "civilized."

Yet, the ICWA has created horror stories of its own. Children have been pulled from the stable care of foster parents and sent into known abusive homes where they were beaten, raped or killed. Stories exist of parents who gave up their infants for adoption using ICWA, only to obtain custody five years later, and then be charged with that child's death months after getting them back. Each of these horror stories, and there are many, has a similar theme: If the ICWA hadn't existed, the parents would not have been able to reclaim those children.

But then consider this: The actual legal fight at hand is not based on any of these stories. Instead, it's the story of mostly white parents who were able to rather easily adopt Native children pushing forward with a lawsuit that would strip Native tribes of preference, seemingly because of minor inconveniences they faced during the adoption process.

Is this law constitutional? Much of it rests on the originalist question of whether the framers built the Constitution in a way that gave the federal government ownership over Indian actions as intimate as child adoption.

Professor Toler explains above the bizarre historical context of forgotten lines and checks in the Constitution. Mark Joseph Stern detailed the volley of articles between two professors in which 80-page dissertations are lobbed back and forth and back and forth and back again.

My conclusion from combing through all of this thick American history and legalese is twofold. First, the ICWA is rooted in longstanding precedent of far-reaching federal authority over tribal issues. Constitutionally, historically, and morally, the federal government was on firm ground to introduce the ICWA. It was a well-crafted, empathetic measure designed to right a historical wrong and has, for many years, achieved its aim.

Second, some members of Native tribes have abused the legislation for ill. There is simply no way around the fact that many children are being plucked from stable non-Native homes and put into unstable Native ones thanks to the ICWA. Importantly (and not discussed in the articles above), unfortunate outcomes like those also happen in child custody battles outside of Native communities. But given the many examples here, it's reasonable to assume good-faith actors want the law to change, even if some people involved in this case might be using it as a Trojan Horse to erode tribal sovereignty more broadly.

If any case proves our law and Constitution are messy and far from black and white, this case is it. I think the most straightforward argument against the constitutionality of the bill is the definition of "Indian child," which (under ICWA) can apply to kids eligible for tribal membership and not simply those who are tribal members. This eligibility comes not from connection to any tribe but from DNA, giving credence to the argument that ICWA’s classification of Native children is race-based, which would make the classification non-political, which would make ICWA a violation of the Constitution's guarantee of equal protection.

One potentially narrow but sound ruling from the Court could be to address this issue. Perhaps tribal membership or something more closely approaching it than, say, having a great-great-great-great grandparent who was a member of a tribe should be the threshold for ICWA’s preferences to come into play. Maybe there is a way the court can rule here that affirms the positive outcomes from prioritizing familial or tribal placement, creates backstops to avoid children being dropped into unstable or abusive homes, and recognizes the historical necessity of this bill and the longstanding legal arrangement between the federal government and Native tribes.

I have no idea how the Court will rule — both arguments have good historical pretexts and powerful emotional claims — but I'll be fascinated and nervous to see the outcome, and the way in which the Court justifies its decision.

Your questions, answered.

Q: Why has Congress been able to quickly codify same sex marriage (if everything goes as expected this week) but unable to do the same for abortion rights? Or, on a more cynical beat, why was abortion used to rally Democrat votes in the midterms instead of codified by Congress in the remaining period when they had control of both houses?

— Megan from Sylvania, Ohio

Tangle: I think the answer here is actually pretty simple: Same-sex marriage is a lot more popular than abortion rights (as crafted under Roe v. Wade). Just 27% of Americans supported same-sex marriage in 1996, but 71% now believe same-sex marriage and opposite-sex marriage should have the same legal protections. That includes a majority of Republicans.

Unlike many political issues, rather than politicians shaping public opinion, public opinion on same-sex marriage has driven politicians. The numbers around abortion are a lot messier, with people divided on the threshold for when abortion should be legal and what instances should constitute exceptions.

To put it more directly: Codified same-sex marriage rights and codified abortion rights are both likely to get 50 Senate votes from Democrats in this Congress. The same-sex marriage bill is likely to become law because roughly 10 to 12 Senate Republicans will vote for it, while codified abortion rights can only get the vote of two to four Republican senators. In the end, that's the big difference in our current Congress.

Want to have a question answered in the newsletter? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.

Under the radar.

The Supreme Court heard oral arguments yesterday in a case that challenges the Biden administration's immigration policy prioritizing deportation for certain unauthorized immigrants over others. While the legality of the policy was under question, so too was whether the state could bring the lawsuit forward, if a federal judge had the power to set the policy aside, and to what extent the executive branch can unilaterally set immigration policy that has a direct impact on certain states. The case is centered around a policy that instructs the Department of Homeland Security to prioritize apprehending and deporting suspected terrorists, people who have committed crimes, and those caught recently at the border. SCOTUSblog has the breakdown.


  • 2.9%. The percentage of people in the United States who identify as Native American and Alaska Native alone or in combination with another race.
  • 9.7 million. The total number of people in the United States who identify as Native American and Alaska Native alone or in combination with another race.
  • 574. The number of federally recognized Native American tribes in the United States.
  • 56%. The percentage of Native children who are adopted and go on to live with families outside their communities, as of 2019.
  • 0.9%. The percentage of all children in the United States who are Native American or Alaska Native.
  • 2.1%. The percentage of all children placed outside their homes in foster care who are Native American or Alaska Native.

Have a nice day.

Dwarika Prasad Semwal has helped bring back traditional water conservation in his village thanks to months of perseverance and creativity. Semwal went door to door in the Chamkot village in Uttarakhand, India, asking residents to dig simple pits near their homes to store rainwater which would eventually seep into the water table. A total of 3,500 water bodies have now popped up across three square miles in the village. The campaign has helped restore lost groundwater levels that could offer a sustainable, long-term solution for the village to have easy access to water for years to come. The Logical Indian has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.