The Indian Child Welfare Act (ICWA) is consistent with the authority granted to Congress by Article I of the Constitution. In three challenges, a birth mother, foster and adoptive parents, and the State of Texas challenged ICWA on multiple constitutional grounds. The federal district court granted petitioners’ motion for summary judgment and a divided Fifth Circuit reversed. After rehearing the case en banc, the Fifth Circuit affirmed in part and reversed in part. The U.S. Supreme Court granted certiorari, affirming the judgment of Fifth Circuit regarding Congress’s constitutional authority to enact ICWA. ICWA aims to keep Indian children connected to Indian families. Congress’s power to legislate with respect to the Indian tribes is “plenary and exclusive.” The Indian Commerce Clause authorizes Congress “[t]o regulate Commerce . . . with the Indian Tribes.” This clause has been interpreted to reach not only trade, but certain “Indian affairs” too. Finally, the “trust relationship between the United States and the Indian people” informs the exercise of legislative power. There is no family law carveout to the Indian affairs power and thus, ICWA is consistent with Article I.
ICWA does not violate the anticommandeering clause of the Tenth Amendment. The U.S. Supreme Court reversed the Fifth Circuit’s holding as to the anticommandeering claims. Petitioners alleged that the ICWA subsection which requires “active efforts” to provide services designed to prevent the breakup of the Indian family violates the Tenth Amendment’s anticommandeering clause. This argument fails because the subsection applies to both private individuals as well as government entities. Legislation that applies evenhandedly to state and private actors does not typically implicate the Tenth Amendment. Petitioners’ argument that ICWA’s placement preferences order state agencies to perform a “diligent search” for placements that satisfy ICWA’s hierarchy fails because when Congress enacts a valid statute, state law is preempted to the extent of any conflict with a federal statute. Petitioners further argued that the ICWA record keeping provisions of section 1951(a), which require courts to provide the Secretary of the Interior with a copy of the final order in the adoptive placement of any Indian child, is improper because Congress cannot conscript the States into federal service by assigning them recordkeeping tasks. However, ancillary recordkeeping requirements do not violate the anticommandeering doctrine because they are a logical consequence of our system of “dual sovereignty” in which state courts are required to apply federal law.
The parties lack standing to bring their equal protection challenges to ICWA. According to petitioners, ICWA’s hierarchy of preferences erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group. However, petitioners have not shown that this injury is likely to be redressed by judicial relief. The state officials who implement ICWA are not parties to this suit. A declaratory judgment would be improper because redressability requires that the court “be able to afford relief through the exercise of its power, not through the persuasive effect of an opinion explaining the exercise of its power.” Additionally, the State of Texas lacks standing to challenge the placement preferences because it has no equal protection rights of its own and it cannot assert equal protection claims on behalf of its citizens.
Concurring opinions: Justice Gorsuch wrote a concurrence, which Justices Sotomayor and Jackson joined; Justice Kavanaugh wrote a concurring opinion in which he states there may be a serious equal protection issue with ICWA, which remains undecided.
Dissenting opinions: Justices Thomas and Alito both filed dissenting opinions.
The full opinion is available on the court’s website here: https://www.supremecourt.gov/opinions/22pdf/21-376_7l48.pdf