Posted By: Simon Goldenberg, Blake Dunham, Andrew Fox, Danielle Finn, and Jolene Eder
April 3, 2015
Throughout U.S. history, states have generally exercised power over adoption laws. However, when Congress enacted the Multiethnic Placement Act of 1994 (MEPA), questions arose regarding the constitutionality of MEPA and its Indian Child Welfare Act (ICWA) exception for Indian children. We believe, for the reasons stated below, that the exception is within congressional power to uphold as it does not violate any constitutional limitations.
History of U.S. and Indian Affairs
To evaluate Congress’s power with regard to upholding these laws, we begin by discussing the federal government’s historical relationship with American Indian Nations. The Commerce Clause, Art. I, § 8, cl. 3, of the United States Constitution vests Congress, and by extension the Executive and Judicial branches of our government, with the authority to engage in relations with the tribes. From 1778 to 1871, the United States entered into multiple treaties with American Indian Nations. These treaties, as discussed in Worcester v. Georgia and Cherokee Nation v. Georgia, recognized and established unique sets of rights, benefits, conditions, and protections for the Nations who entered into them. In United States v. Kagama, the Federal Indian Trust Responsibility developed.
The Federal Indian Trust Responsibility, as discussed in Seminole Nation v. United States and Cherokee Nation v. Georgia, is a legal obligation under which the United States “has charged itself with moral obligations of the highest responsibility and trust” toward Indian tribes. The trust responsibility holds the United States legally responsible for the protection of tribal lands, assets, resources, and treaty rights. Congress has recognized the trust responsibilities and has stated, “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”
Enacted in 1978, The Indian Child Welfare Act (ICWA) is a federal law that was implemented to help keep American Indian children with American Indian families. Congress passed ICWA with the intent to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” ICWA was developed in response to the high number of American Indian children being removed from their homes and essentially their Native culture by public and private child welfare agencies.
ICWA requires courts to apply different requirements in child abuse and neglect, termination of parental rights, guardianship and adoption cases if they involve an American Indian child. An “Indian child” is “any unmarried person who is under age eighteen and is either (1) a member of an Indian tribe or (2) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”. Under ICWA, an Indian tribe has exclusive jurisdiction over an Indian child who resides or is domiciled within the tribe’s land. If the child is not domiciled on the reservation, a state court must transfer jurisdiction to the tribal court upon petition. Either the parents, an Indian custodian, or the Indian child’s tribe petition for this transfer—unless either parent objects or the transfer lacks good cause.
Years later, The Multi-Ethnic Placement Act (MEPA) was enacted in 1994 in order to prohibit delaying or denying “the placement of a child for adoption or into foster care, or otherwise discriminate in making a placement decision, on the basis of the race, color, or a national origin of the adoptive or foster parent, or the child, involved.” The goal of MEPA was in part to ameliorate the disproportionately low permanent placement rate of minority children in foster care. Therefore, we must look deeper at the ICWA exception within MEPA and examine whether the exclusion of Indian children allows for extra constitutional rights not afforded to children of other races. Looking at ICWA case law offers some insight into the evolution of this question.
Mississippi Band of Choctaw Indians v. Holyfield (1989):
This case involves twin babies whose parents were members of the Mississippi Choctaw Indian Tribe. The twins were born 200 miles from the reservation in Harrison County, Mississippi. The mother had moved to the county to give birth off the reservation and place the children with the Holyfields. The Holyfield family, who are non-Indian, adopted the twins. The County Chancery Court signed a decree of adoption in the beginning of 1986. Two months later, the Tribe moved to vacate the decree, stating that the Tribal Court had exclusive jurisdiction.
The Chancery Court denied their motion stating that the children had never lived on the reservation and were not born there. Therefore, the court asserted that the Tribal Court had no jurisdiction over the children. The Tribe appealed to the Mississippi Supreme Court, which affirmed the state court’s decision. The court found the children were “domiciled” in Harrison County, and that the Chancery Court properly exercised jurisdiction over the twins.
The Tribe appealed and the U.S. Supreme Court granted certiorari. The Supreme Court found that in fact, the twins were “domiciled” on the Tribe’s reservation within the meaning of ICWA’s exclusive tribal jurisdiction provision. Therefore, the Chancery Court was without jurisdiction to enter the adoption decree. The U.S. Supreme Court conceded that while ICWA does not define “domicile,” Congress clearly intended a uniform federal law of domicile for ICWA and did not consider the definition of the word to be a matter of state law. Also, they stated that Congress could not have intended the definition of domicile to vary between state-law definitions of domicile, whereby different rules could apply to the Indian child simply because they are moved across state lines.
The Supreme Court further stated that Congress enacted the ICWA because of concerns outside the individual wishes of parents. ICWA was intended to protect the welfare of Indian children because their removal from tribes impacts their cultural setting and the long-term survival of their tribe. This removal has further damaging social and psychological impacts on individual Indian children.
Justice Stevens, joined by Rehnquist and Kennedy, dissented to the majority opinion. Stevens felt that since the parents consented to the adoption and wanted to use the state court system, they should be allowed to do so. Stevens believed that ICWA was for the involuntary removal of Indian children from their families and the tribe, and therefore a voluntary action does not have the same characteristics. Consequently, Stevens stated, ICWA should not apply to the circumstances at hand.
After remand from the U.S. Supreme Court, the Tribal Court allowed the twins to remain with their adoptive family, because “it would have been cruel to take them from the only mother they knew.” The Tribal Court ordered that the children stay in contact with their extended family and tribe.
Adoptive Couple v. Baby Girl (Baby Veronica) (2013):
Twenty years following the aftermath of Mississippi Choctaw v. Holyfield, a couple from South Carolina wanted to adopt a child whose father was an enrolled member of the Cherokee Nation. The father, Dusten Brown, had relinquished his parental rights under the mistaken assumption that he was handing those privileges over to the birth mother, not an adoptive couple. Although Oklahoma law requires that an Indian tribe be informed if an Indian child is to be adopted, the mother’s attorney misspelled Brown’s name and provided an incorrect date of birth. As a result, the tribe was not appropriately notified of the proposed adoption.
In trial court, Brown fought against the adoption on the grounds that he was not properly notified in accordance with ICWA. The Cherokee Nation intervened as a party in its own right in the case. Under South Carolina law, a father’s parental rights are terminated if he does not provide pre-birth support and become involved with the child shortly after birth. Regardless, the court noted that ICWA preempts state law. The trial court found that Brown did not consent to the termination of his parental rights and that ICWA applied. Brown won.
On appeal, the South Carolina Supreme Court was split 3-2 in affirming the decision of the court below. The court cited Choctaw Indians v. Holyfield: “Where an Indian child’s best interests are at stake, our inquiry into that child’s best interest must also account for his or her status as an Indian, and therefore, we must also inquire into whether the placement is in the best interests of the Indian child. This is based on the fundamental assumption that it is in the best interest of the child to be with her father, which also preserves her tribal affiliation.”
In December, 2011, Brown was given custody of the two-year-old, despite the fact that the adoptive parents had been excellent caretakers. Consequently, the case was made popular by news media and prompted calls for Congress to review and amend ICWA.
A year later, the adoptive couple petitioned the U.S. Supreme Court to review the case. The court granted certiorari and issued a 5-4 decision, holding that ICWA does not apply to biological fathers who do not have custody of the child in the first place. Further, that the procedures required by ICWA to terminate parental rights do not apply when the child has never lived with the father. Finally, the Supreme Court dictated that the requirement to make extra efforts to preserve the Indian family does not apply, nor is the preferred placement of the child in another Indian family required, when no other party has formally sought to adopt the child.
Justice Scalia dissented and stated that biological parents had legal rights that no law or policy could dilute. Justice Sotomayor also dissented, stating that the narrow interpretation of the statute by the majority destroyed the federal standard established by Congress in favor of a piecemeal system of state control.
The case was remanded to the South Carolina trial court. In 2013, the child was turned over to her adoptive parents.
In both cases we have seen that despite the power asserted by ICWA over children with Indian blood, the fundamental differences between biological and legal parenthood are brought into stark contrast.
In Holyfield, the court upheld the importance of ICWA and advocated that tribal ties are what matter for children. Furthermore, the court held that the adoptive intent of the biological parents had no meaning. In a surprising twist, however, the Choctaw Tribe circumvented the Supreme Court’s mandate by relinquishing control over the twins. The Tribe didn’t want to separate the children from the only mother they had ever known. It seems that the Choctaw Tribe recognized what the state and federal court did not: that despite legislative policy goals, there are undeniable human necessities that must be recognized. The Choctaw Tribe seemed to find a middle ground by ordering that the twins be allowed to reside with their adoptive family, while also remaining in mandatory contact with their extended Choctaw people. Regardless of the Tribe’s concession, the far-reaching implications of the Holyfield decision have yet to be seen.
In the Baby Veronica case, the U.S. Supreme Court seemed to loosen ICWA’s grip on Indian children. It stated that despite biological ties, when a parent relinquishes custody of their child there is no going back—regardless of whether that parent meant to surrender custody or has congressional support. Unfortunately, Baby Veronica is a narrow holding in the face of the vast reservoir of ICWA-related disputes.
Even after these landmark cases, important questions remain unanswered as to what the policy goals behind ICWA should be. Will an Indian tribe be diluted if their children are adopted by a non-Indian family? How do we separate the needs of an Indian tribe and the needs of a child? Can we meet the needs of both by sweeping legislation or must we look at the problem on an expensive, case-by-case basis?
In other words, can a middle ground be established, like in the Holyfield case? Or do we only need to redefine ICWA when issues come up, such as in Baby Veronica? Only time will tell. Meanwhile, the constitutionality of the ICWA exemption from MEPA must still be answered.
Congressional Power: Indian Commerce Clause and the 10th Amendment
The Multi-Ethnic Placement Act (MEPA) includes an exemption for the Indian Child Welfare Act (ICWA) that assures MEPA will not alter the protection afforded to Native American families under ICWA. In his concurrent opinion in Adoptive Couple v. Baby Girl, Justice Thomas raised the issue as to whether ICWA is in fact constitutional itself under the Indian Commerce Clause. According to Thomas, the Indian Commerce Clause does not grant the requisite plenary power to create legislation such as ICWA. It is worth mentioning that the majority opinion in Adoptive Couple did not discuss the constitutionality of ICWA under the Indian Commerce Clause. Regardless, aside from Thomas, there have also been a few state courts and commentators who have made a similar Indian Commerce Clause argument which deserve further consideration. Ultimately though, such a narrow reading of the Indian Commerce Clause is not in line with the founders intentions. Here, both sides of the debate will be examined with the ultimate conclusion that ICWA and its MEPA exception are constitutional.
ICWA asserts that the Indian Commerce Clause, Art. I, § 8, cl. 3, and “other constitutional authority” provides Congress with “plenary power over Indian affairs.” The argument found in Thomas’ concurrence is that neither the textual nor the original understanding of the Clause supports Congress’ claim to a plenary power and further, since Congress does not have plenary power and ICWA does not have a substantial impact on commerce, the Act is unconstitutional. The Indian Commerce Clause should be read very narrowly, as the clause simply gives Congress the authority to regulate ‘commerce’ with tribes. As support for a narrow understanding of ‘commerce’ is a definition that limits commerce to aspects of trade; “At the time the original Constitution was ratified, `commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” Furthermore, ‘commerce’ with Indian tribes at the time of the founding invariably meant ‘trade with Indians.’ Imparting the economic understanding of ‘commerce,’ a straightforward reading of the text limits Congressional power to regulating commercial interactions taking place with established Indian communities. Thomas makes a special point to mention that this power is further limited to regulation with Indian tribes, meaning only those that have not been incorporated into the ‘body-politic of any state.’ Reading the clause to only deal with tribes creates an issue, since ICWA also deals with adoptions of Indian children not on reservations. If power is limited to economic transactions with Indian tribes, the power under the Indian Commerce Clause is far from plenary.
Under the narrower reading of ‘commerce’ the constitutional problems with ICWA are obvious. ICWA is primarily focused on ‘child custody proceedings’ not ‘commerce.’ If commerce is limited to selling, buying, and transportation of goods, child custody proceedings clearly fall outside of the scope of ‘commerce.’ According to the statute, ICWA was enacted to deal with the “alarmingly high percentage of Indian families [that were] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” The problem outlined in ICWA §1901(4) has nothing to do with commerce. In addition, since the Constitution does not give Congress the power to overrule state law whenever that law happens to be applied to Indians, the application of the ICWA to off-reservation child custody cases would be unconstitutional.
On the other hand, to find ICWA unconstitutionally requires an overly narrow understanding of the Indian Commerce Clause. The Framers intended for Congress to have a broader understanding of the term ‘commerce.’ In fact, when the Constitution came into effect, the connotation attached to the word ‘commerce’ aligned closer with the modern idea of interactions or relations than trade. Proof of this can be found in the Indian Intercourse Act of 1790. The Act, enacted under the Indian Commerce Clause power, is representative of the original intent of the Indian Commerce Clause and it plainly regulated non-economic intercourse with tribes. Further support for this broader understanding is found in the fact that the Framers intended the Constitution to remedy the problems created under the Articles of Confederation, where states frequently attempted to meddle in federal Indian affairs policy. As such, it is apparent that the drafters of the Constitution meant for commerce to have a broader meaning with relation to Indians.
In determining whether an act of Congress was authorized by the Indian Commerce Clause, the general test the Supreme Court has employed, as seen in Delaware Tribal Business Committee v. Weeks, is the “rational basis test.” According to Weeks decision, so long as the statute is rationally related to the “fulfillment of Congress’s unique obligation toward the Indians” the exercise of Congressional authority under the Indian Commerce Clause is Constitutional. The question then becomes whether or not Congress rationally believed that dealing with Indian adoptions falls under “Indian Commerce.” The Court generally defers to congressional judgment on whether its regulation addresses an issue that substantially affects interstate commerce. There have been recent exceptions, such as United States v. Lopez, to this level of difference with the current, neo-formalist Court. In the case of ICWA, Congress took extensive testimony on the matter before concluding that the Act was necessary. Despite the composition of the current Court, and its tendency not to defer to congressional judgment on Commerce Clause issues, the Indian Commerce Clause is different. As a result of the Framers desire that states should have no role in Indian affairs, the Court’s deference to acts of Congress under the Indian Commerce Clause should be even higher than that found in traditional Commerce Clause cases. Accordingly, using an understanding of ‘commerce’ based on the founders understanding and applying it to ICWA results in a conclusion that the Act is constitutional.
Since traditionally areas of family law are within the realm of the state, it is necessary to briefly analyze whether the 10th Amendment offers any obstacle to ICWA’s constitutionality. ICWA not only applies to issues of child custody and adoption on the reservation, but also to Indian children living off the reservation, which could be considered an imposition on state authority. The 10th Amendment reserves the powers of the states when the Constitution does not specifically delegate those powers to the federal government nor prohibit it to the states. One area where the Constitution gives no power to the states is Indian Affairs. As the Court stated in Seminole Tribe of Florida v. Florida, “[T]he States … have been divested of virtually all authority over Indian commerce and Indian tribes.” Accordingly, the 10th Amendment creates no obstacle to Congressional authority under ICWA.
In sum, the original intent of the Framers of the Indian Commerce Clause supports a broader, less economic, interpretation than the one found in challenges to ICWA. Under the Framers’ understanding of ‘Indian Commerce’ there is no question that an Act focusing on the adoption of Indian Children is within the bounds of the Clause. Furthermore, arguments that the Act violates the 10th Amendment by infringing upon state authority is also unpersuasive since Congressional authority over Indian affairs was intended to be plenary and exclusive. Regardless, does the ICWA exemption from MEPA hold up against the 14th Amendment Equal Protection Clause?
The Equal Protection Argument:
The Multi-Ethnic Placement Act (MEPA) includes an exemption for the Indian Child Welfare Act (ICWA) that assures MEPA will not alter the protection afforded to Indian families under ICWA. Consequently, ICWA has been challenged as unconstitutional for violating the Equal Protection Clause in the Fourteenth Amendment. The Equal Protection Clause prohibits a state from denying the rights and protections due to any person in its jurisdiction. Although MEPA does not raise any challenges to ICWA, the exemption raises a simmering debate about whether ICWA is constitutional if Indians are exempted from an act that affects other races. Here, both sides of the debate will be examined with the ultimate conclusion that the MEPA exception is constitutional.
ICWA grants preference to place an Indian child with extended family or within the tribe. Conversely, MEPA prevents agencies from affording the same right to other children based on race, ethnicity, or nationality. Consequently, the MEPA exemption and ICWA have been misconstrued as providing enhanced rights to one group over others on the basis of race. Justice Thomas recently raised this very challenge in a footnote of Adoptive Couple v. Baby Girl, writing, “Petitioners… contend that applying ICWA to child custody proceedings on the basis of race implicates equal protection concerns.” While Justice Thomas left this stone unturned since he had already concluded Congress lacked authority via his interpretation of the Indian Commerce Clause, his acknowledgment of the Equal Protection Clause argument gave weight to its supporters. This argument has two key assumptions: that (1) ICWA gives Indian children special considerations not afforded to other purely on the basis of race; and (2) public agencies making placement decisions are under state jurisdiction. Therefore, a placement method under state domain that differs based on race violates the Fourteenth Amendment and should be found unconstitutional.
However, Congress created ICWA under the assumption that they have plenary power over all interaction with Indian tribes. This is crucial because the Fourteenth Amendment does not apply to the Federal Government; therefore, there would not be an Equal Protection Clause issue. Indian status has traditionally been recognized as a political, rather than a racial status. In Cherokee v. Georgia, Justice Marshall wrote, “[The Indians’] relation to the United States resembles that of a ward to his guardian. They look to our government for protection.” This relationship exists between only Indian nations and the Federal Government outside state involvement. Morton v. Mancari affirmed this relationship in stating, “[t]he plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself.” These cases recognize the “unique legal status” of Indian tribes and their members. Consequently, the Federal Government may make laws to protect the welfare of Indian tribes that need not contend with the Fourteenth Amendment.
If Indian children are treated differently based on a unique political status, then the placement procedure in ICWA is not a racial preference. ICWA is only granted to federally recognized tribes, so many Indian children do not fall under its purview. Nevertheless, a handful of state court cases have challenged this relationship by inferring the preference to be based on race. A California court in In re Bridget R. held that if “social, cultural or political relationships do not exist or are very attenuated, the only remaining basis for applying ICWA rather than state law in proceedings affecting an Indian child’s custody is the child’s genetic heritage — in other words, race.” In re Santos Y. came to a similar conclusion five years later. However, the attempt to separate disparate treatment based on political status from race is highly subjective. To make a court the arbiter of whether a child is “Indian” when tribal and federal definitions are already in place is problematic and an attempt by the state to diminish a long-standing political relationship.
Nonetheless, courts tend to recognize Congress’s plenary power and the sovereignty of Indian tribes and their citizens. As the Court in Seminole v. Florida observed, “States… have been divested of virtually all authority over Indian commerce and Indian tribes.” Under this logic, Congress has the sole authority to make laws for all federally recognized tribes. Consequently, the Equal Protection Clause does not apply to ICWA or the MEPA exemption.
ICWA and its exemption from MEPA have been demonstrated to withstand attacks on its constitutionality in regards to violating the 10th Amendment, as well as the 14th Amendment Equal Protection Clause. Our analysis also revealed that Congress’s use of the Indian Commerce Clause to draft ICWA was constitutional. As demonstrated, Indian affairs and consequently the adoption of Indian children is within the scope of power exercised by Congress.
It could be argued that ICWA should be amended to reflect the state’s interest as trustee for affected children if they believe parental rights should supersede the rights of the tribe. However, if states were given power to regulate the adoption of Indian children normally triggered by ICWA, the act would no longer reach its end and that would violate the federal trust relationship. As we have seen, Congress has plenary power over relationships with American Indian Tribes and even a trust obligation to protect tribal interests. ICWA was created in furtherance of that end. Subsequently, congressional authority over Indian affairs was intended to be plenary.