In March, oral argument was heard at the Fifth Circuit Court of Appeals on an appeal of a federal district court judge in Texas, who ruled that the Indian Child Welfare Act (ICWA) was unconstitutional. Judge Reed O’Connor, in Brackeen v. Zinke, ruled primarily that the ICWA gave Native American families impermissible advantages based on race, in violation of the Fifth Amendment’s guarantee of equal protection.
Much like with the Supreme Court’s decision in Adoptive Couple v. Baby Girl, the first paragraph of the court’s opinion tells you just about everything you need to know about how the case will be decided.
This case arises because three children, in need of foster and adoptive placement, fortunately found loving adoptive parents who seek to provide for them. Because of certain provisions of a federal law, however, these three children have been threatened with removal from, in some cases, the only family they know, to be placed in another state with strangers. Indeed, their removals are opposed by the children’s guardians or biological parent(s), and in one instance a child was removed and placed in the custody of a relative who had previously been declared unfit to serve as a foster parent. As a result, Plaintiffs seek to declare that federal law, known as the Indian Child Welfare Act (the “ICWA”), unconstitutional.
So, much like in Adoptive Couple, there is a facially-unsympathetic fact pattern that gives rise to a decision that limits – or in this case, eviscerates – tribal interests and tribal sovereignty. In Brackeen, the primary grounds upon which O’Connor found the ICWA unconstitutional was that it gave race-based advantages to Native American families. Because the court found the advantages to be race-based, the equal protection clause of the Constitution requires strict scrutiny to be applied, meaning that the statute had to serve a compelling state interest and be narrowly tailored to meet that interest. O’Connor found the ICWA did not meet that strict scrutiny standard.
(O’Connor also ruled that the ICWA violated the “anti-commandeering” principles recently established by the Supreme Court to enforce principles of federalism protected by the Tenth Amendment. We’ll address that provision another time).
Two different Supreme Court cases were looked at by O’Connor, and help to set the table for the legal analysis. The first, Rice v. Cayetano, found unconstitutional a state agency that could only be voted on by “native Hawaiians” as defined by state law. The second, Morton v. Mancari, found permissible plan from the federal Bureau of Indian Affairs that gave hiring preferences to Native Americans.
Both cases raised questions about whether a group was getting a benefit based on their race, which would be impermissible under the equal protection clause of the Constitution unless it furthered a compelling state interest and was narrowly tailored to serve that purpose.
So how did the Supreme Court reach such different results in these two cases?
Primarily, the difference lies in how the Court in Rice defined who qualified as a Native American. Specifically, the Rice court found that state of Hawai’i decided who was and was not a “native Hawai’ian” and therefore permitted to participate in a state agency. In Mancari, by comparison, it was the tribes themselves that decided their own membership rules, and the hiring preferences from the federal government flowed from those tribal determinations of membership. Because the tribes – ancient nations which retain the sovereignty not removed from them – decide their own membership, the Rice court found that the distinction of being Native American (or “Indian” in the language of the decision) was a political one, rather than a racial one.
At first blush, it’s easy to see how that distinction could cause confusion. Many tribes do use some level of “blood quantum” as a test for being a member, and without thinking through the sovereignty questions those distinctions could look a lot like a racial test.
But keep in mind that the important question isn’t what the test for membership actually is. The important question is who decides what that test should be. There is no more central element of sovereignty – of the power to make decisions for yourself as a group and be governed by them – then to determine who is a member of that group.
Seen in that light, then the decision in Mancari makes far more sense. The purpose of the native hiring preference at issue was to help tribal communities, which is part of the federal government’s trust obligation to tribes. As sovereigns, tribes get to decide for themselves who is and is not a member of their nations. The decision in Mancari gives respect to the tribes to allow them to make that decision for themselves.
A thought experiment might help the distinction make more sense. Start with this. Even if you weren’t born in the United States, you’re still eligible to become a US citizen if one or both of your parents was a citizen. Very few people raise an eyebrow at that rule – indeed, throughout most of the world, tracing citizenship through your direct relatives is the accepted rule.
Well, how is that substantively different than what tribes that use a blood quantum membership rule do? Doesn’t a blood-quantum rule really serve the same function as a citizenship-through-parents rule, simply making sure that families can all be citizens of the same nation.
And yet we don’t think of the citizenship-through-parents rule, that is ubiquitous worldwide, as somehow a race-based determination. So why do some see the blood-quantum rule for membership that some (but, remember, not all) tribes use to determine membership as a race-based determination? Would it look different if we talked about “citizenship” within a tribal nation rather than “membership?”
In the district court case, though, O’Connor focused more on Rice than Mancari. In Rice, the Supreme Court found that the state of Hawaii couldn’t authorize a state agency that could only be voted on by “native Hawaiians.” So what’s the difference between the Supreme Court’s decisions in Rice and Mancari?
Again, we come back to who is making the decisions with regard to the distinction. In Rice, it was the state of Hawaii, not any sovereign native nation, that was making the decision about who could and could not participate. Unlike Mancari, there was no political decision being made by a sovereign nation as to its own citizenship.
Additionally, it is important that it was a state government, not the federal government, making this distinction. Ever since the founding of the nation, the Supreme Court has recognized that the federal government has a unique “trust relationship” with Native American tribes. That “trust relationship” requires the federal government to take action to help Native American tribes, and gives the federal government (specifically Congress) additional powers to facilitate that relationship.
Because of that trust relationship, the federal government’s authority to regulate issues surrounding Native Americans is always going to be broader than a state’s. At least with the understanding of this area of law from the time of Mancari, the federal government’s supremacy in this area stemming from the trust relationship would have led a court to apply the rule from Mancari instead of Rice towards a federal statute like ICWA.
Which is why the ruling in Brackeen was such a surprise, and such a big deal. If the Supreme Court were to adopt the Brackeen rationale, it wouldn’t just be ICWA that would be in legal jeopardy. If ICWA can be invalidated on equal protection grounds, then there is almost no ruling in this area of law that would not be vulnerable to the same result. In essence, if the Brackeen ruling becomes the law of the land, tribal sovereignty could all but become a thing of the past.
We’ve seen this movie before. In what was called the Termination Era, from the 1940s to the 1960s, it was the express policy of the federal government to “terminate” tribes’ trust relationship with the federal government. The express purpose of the policy was to treat Native American people “no differently” than non-natives, although it also significantly reduced the federal government’s financial obligations to Native American communities.
Termination Era policies were intended to “free” Native Americans from the federal government, on the premise that by doing so Native American people would simply assimilate into the broader American society. In addition to endangering unique native cultures and disrupting tribes’ ability to make decisions for themselves, Termination Era policies also had the effect of “freeing” the United States government from the financial responsibilities to assist tribes that came with the trust obligations.
In practice, Termination Era policies were disastrous for tribes and tribal communities. Thriving tribal businesses were devastated when the rules under which those businesses operated shifted, and tribal communities were cut adrift. A more thorough discussion of the underlying causes and effects of the Termination Era policies can be found here.
In 1970, President Richard Nixon recognized the harm that was being done by Termination Era policies, and shifted the focus of the United States government towards respecting tribal sovereignty and working with tribes on a sovereign-to-sovereign basis. This began what is known as the Self-Determination Era, and still describes the basic principle of how the United States government interacts with tribes.
But if O’Connor’s opinion in Brackeen were to become the law of the land, all that might change. If the courts were to find that ICWA violated the Constitution, then it would be difficult to see how almost all areas of law surrounding tribes could not fall victim to the same attack. In essence, by judicial fiat and without any act from Congress, the federal government would return to Cold War-era policy with regards to how the United States interacts with tribes and tribal communities.
That’s why the case is such an important one to follow. Whatever the outcome from the Fifth Circuit, it is likely that the losing party will appeal to the Supreme Court. And with the new makeup of the Supreme Court, it is even more difficult than normal to predict the outcome of such an appeal.
In a unanimous 8-0 decision, the United States Supreme Court ruled that the city of Pender is still within the Omaha Indian Reservation, and as a result the Omaha Tribe can impose a tax on sales of alcohol in Pender.
The case, called Nebraska v. Parker, pitted the state of Nebraska and the village of Pender against the Omaha Tribe in deciding whether or not the reservation boundaries had moved. In 1882, the Omaha Indian Reservation’s boundaries were formalized between the United States and the Omaha Tribe. In that Congressional act, part of that land was sold to a settler named W.E. Peebles, who ultimately founded the village of Pender.
However, since then, the residents of Pender have been almost entirely non-Indian, and the Omaha Tribe did not attempt to regulate any activity in Pender until 2004. At that point, the Omaha Tribe issued a tax on any sales of alcohol on the reservation, which would include merchants in Pender.
The Pender merchants, along with the State of Nebraska, asked the federal courts to determine that the Omaha Indian Reservation had been diminished, meaning that the boundaries had changed so that Pender was no longer part of the reservation. If the village was correct and the reservation was diminished, then the Omaha Tribe would no longer have any authority over activity in Pender.
The United States Supreme Court, in a case called Solem v. Bartlett, set up a three-part test to determine whether or not a reservation had been diminished. The first part of the test was to determine if Congress intended to reduce the size of the reservation at the time of its creation. Since the founding of the nation, Congress has had the power to make final decisions with regards to native lands and sovereignty. This power, called “plenary power,” makes Congress (for the most part) the final word in terms of Indian affairs.
As a result, the Supreme Court in Solem determined that whatever Congress’ decision was with regards to the borders of a reservation was final. If Congress specifically said that the size of a reservation should be diminished, then the borders would change accordingly. However, for the Court to find that the border has been diminished, Congress must have been specific in doing so. The Court will not imply a diminishment without an express action from Congress.
The second test in Solem was whether there was historical evidence at the time of the creation of the reservation that Congress intended to diminish the reservation. This test goes back to the premise that Congress must be clear in acting to reduce reservation land. If Congress did not specifically say it wanted to diminish the reservation, but there was clear historical evidence to show that was what Congress wanted to do, then a later court could find a diminishment.
In the question as to whether Pender was part of the Omaha Indian Reservation, there was very little evidence to demonstrate Congressional intent to diminish using either of these first two tests. As a result, the only way Pender would be successful is with the third part of the Solem test.
That third part of the test is whether the current demographics of the area would suggest a Congressional intent to diminish. The evidence for this test would seem to be strong for Pender, as the population of the village is almost entirely non-Indian. Supreme Court cases that came after Solem seemed to suggest that the demographics of an area would go a long way in determining whether it remained as reservation land.
However, Justice Clarence Thomas wrote for a unanimous Court significantly limiting the demographic test from Solem. Thomas wrote that the demographic test could be used to supplement evidence of Congressional intent to diminish. But if there was no evidence of Congressional intent – which is what the Court found with regards to Pender – then the demographics of the area were not relevant in determining whether a reservation had been diminished.
The ruling in this case was significant in reaffirming the primary role of Congress in determining policy regarding native lands and sovereignty. Since the decision of Oliphant v. Suquamish Indian Tribe in 1978, the Court had been steadily inserting itself as an equal decision-making partner with Congress in areas of native lands and sovereignty. In Parker, the Court has taken a significant step away from that claim of power, returning decision-making with regards to native lands and sovereignty to Congress.
The full text of the opinion can be found here.
If you have questions about Indian Law, contact Runge Law Office at email@example.com or at (402) 390-9577 to schedule a free initial consultation. Visit us at www.patrickrunge.com for more information.
The Nebraska Supreme Court upheld a Court of Appeals decision that expands the effectiveness of the Indian Child Welfare Act (better known as ICWA) in Nebraska. The specific decision, In re Shayla H, says the State still has to provide active efforts for an Indian family even if the child is placed with a parent, so long as the State still retains decision-making power over the child.
Confusing? Well, maybe a little background will help. Ordinarily when a child is removed from his or her parents by the State due to abuse and neglect, the State must make “reasonable efforts” to reunify the family. However, when an Indian child is involved and there is a question of foster care or termination of parental rights, ICWA requires the State to provide “active efforts” (a higher standard of care than “reasonable efforts”) to prevent the breakup of the Indian family.
In this case, the State argued that because the child was placed with the parent, it wasn’t an issue of foster care or termination of parental rights, so the “active efforts” requirement of ICWA shouldn’t apply. But the Supreme Court, in agreeing with the Court of Appeals, said that any time when the legal decision-making power for the child has been removed from the parent (as it had in this case, even though the child was placed with the parent), a foster care placement could arise, and therefore the higher active efforts standard should apply.
But why should there be a different standard in the first place? Why do Indian children get special treatment that non-Indian children don’t enjoy?
From the very beginning of the United States, the country grappled with how to justify taking the lands of the native peoples who were there before. The first Chief Justice of the Supreme Court, John Marshall, enshrined into law the concept of a trust relationship, where the United States owed native Americans a duty of protection in exchange for exercising power over them.
Through the years, that trust relationship has been expressed in different ways, and for much of American history involved attempting to “de-Indian” the native people, guided by the paternalistic idea of “killing the Indian to save the man.”
By the turn of the 20th century, that policy involved the forcible removal of Indian children to boarding schools, where their ceremonial long hair was cut and any expression of their native culture or language was harshly punished. And while the boarding schools were later closed, by the middle of the twentieth century Indian children were being removed from their homes by child protective services at an alarmingly disproportionate rate.
So, in response to that rate of removal, along with the history of the boarding schools and other official Federal policies designed to destroy Indian culture, and recognizing the underlying trust obligation the United States has to the native American people, Congress passed ICWA in 1978 to right some of the wrongs committed in the past.
ICWA has a number of provisions designed to preserve Indian families and provide opportunities for the tribes, rather than state courts, to make decisions with regards to the welfare of Indian children. The “active efforts” standard for Indian children in foster care is part of the attempt by ICWA’s drafters to help ensure that Indian children are removed from Indian families only when the strongest of reasons are present, and that every effort is made to help reunite those Indian families and alleviate the problems that got the State involved in the first place.
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We have practiced law in Omaha and eastern Nebraska since 1995. At Runge Law Office, we focus our practice on:
– Family Law. This area includes divorce, custody disputes, child support issues, modification of previous orders when circumstances have changed, and enforcement actions that use the power of the Court to follow a previously-entered order.
– Criminal Defense. We have experience in tribal, state, and federal courts, defending people accused of both felonies and misdemeanors. If you have been accused of a crime, both your freedom and your future are at stake. You need experienced representation that knows how to find a solution to your problem, either through smart negotiation or in court.
– Juvenile Law. If the State has come in and taken your children based on allegations of abuse or neglect, it is critical that you have experienced representation helping you. Once a child has been removed and a juvenile court cause started, by law parents only have a certain amount of time before the State will take actions to permanently take your children away. We have extensive experience in juvenile court, and can help you find a solution to your problem.
– Estate Planning. Thinking about death is always unpleasant. But if you don’t have a plan for your property when you die, the State has one for you. If you want to make sure you have control over your property once you die, you need to speak with us. We have experience in listening to your concerns and crafting the right legal framework to ensure that your wishes are honored and your family is protected after your death. We can also help you with living wills and powers of attorney to make sure your wishes are honored and your rights are protected when you are at your most vulnerable.
– Native American Law. In Indian Country, the intersection of tribal, state, and federal laws can be very challenging. We have years of experience working in Indian Country, in both tribal courts and state courts, and can help you navigate the legal, jurisdictional, and cultural barriers you may be facing. Patrick has been a public defender in tribal court, and is currently the Chief Judge of the Winnebago Tribal Court. He also teaches Native American Law at the Creighton University School of Law, and has taught and spoken frequently about Native American Law issues such as the Indian Child Welfare Act.
At Runge Law Office, we are here to help find solutions for your legal problems. Please contact us at 402-390-9577 or using the form below to ask questions or schedule a free consultation.