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.