Megan Dollenmeyer, Associate Member, University of Cincinnati Law Review
By declaring the Indian Child Welfare Act (“ICWA”) and its accompanying regulations, the Indian Child Welfare Act Proceedings (“Final Rule”), unconstitutional, a Texas district court throws out decades of Supreme Court precedent and threatens to undermine a core piece of legislation key to advancing tribal sovereignty. In Brackeen v. Zinke, three non-American Indian families each adopting an “Indian child,” as defined by the ICWA, and the states of Texas, Louisiana, and Indiana, moved for summary judgement against the United States of America, the Department of the Interior (“Interior”), the Bureau of Indian Affairs (“BIA”). The Cherokee Nation Oneida Nation, Quinalt Indian Nation, and the Morengo Band of Mission Indians all filed unopposed motions to intervene, siding with the defendants. The plaintiffs claim that the ICWA and Final Rule violate the equal protection requirements of the Fifth Amendment of the United States Constitution by establishing different placement preferences in adoption proceedings based on the child’s race.
In 1978, Congress enacted the Indian Child Welfare Act (“ICWA”) in response to “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” The ICWA recognizes that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” The ICWA defines “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” Among other things, the ICWA seeks to keep American Indian children with their cultures by preferring placement in “absence of good cause to the contrary” with (1) a member of the child’s extended family, (2) other members of the child’s tribe, or (3) other American Indian families in adoption proceedings for an “Indian child.” Although the Bureau of Indian Affairs issued non-binding guidelines to advise on ICWA application in 1979, states’ varied interpretations of the ICWA prompted the BIA to promulgate the Indian Child Welfare Act Proceedings (“Final Rule”) in 2016 to ensure that states apply the ICWA consistently.
The plaintiffs contended, and the district court agreed, that the second part of the ICWA’s definition of “Indian child,” violates the equal protection clause of the Fifth Amendment. The district court judge analogized the ICWA’s “eligibility standard” to the Hawaiian statute in Rice v. Cayetano, which restricted voter eligibility for a particular election to “native Hawaiians.” In Rice, the Supreme Court applied strict scrutiny, wherein the legislation must be narrowly tailored to serve a compelling government interest, arguing that “ancestry can be a proxy for race” and that the statute “used ancestry as a racial definition and for a racial purpose.” The defendants argued for rational basis review, relying on Morton v. Mancari to argue that the ICWA distinguishes the children based on political, not racial, classifications. In Mancari, the Supreme Court upheld a BIA hiring standard that gave preference to American Indian applicants, on the grounds that the preference was political rather than racial. Under Mancari’s rational basis review, federal statutes governing American Indians relying on political classifications are permissible if the “particular and special treatment” of American Indians is “tied rationally to the fulfillment of Congress’ unique obligation toward the Indians.” The Texas district court interpreted Rice to subject all ancestry-based classifications to strict scrutiny, and interpreted Mancari to permit rational basis review for all classifications based on tribal membership. However, the district court did not address the Supreme Court’s rationale against applying Mancari in Rice on grounds that “[i]t is a matter of some dispute…whether Congress may treat the native Hawaiians as it does the Indian tribes.”
The Texas district court judge concluded that that “[b]y deferring to tribal membership eligibility standards based on ancestry, rather than actual tribal affiliation, the ICWA’s jurisdictional definition of ‘Indian children’ uses ancestry as a proxy for race” and must pass strict scrutiny. According to the district court, the ICWA’s preference is overbroad because “[t]he ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes.” While fully considering the narrow tailoring requirement, the district court judge did not analyze the compelling interest requirement, on grounds that the “government did not prove—or attempt to prove—why the ICWA survives strict scrutiny.”
Congress enacted the ICWA because “the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” The Texas district court commits a grave error by failing to acknowledge that determinations of “membership” are best left to tribes, not the colonial power. The Indian Child Welfare Act is crucial for tribal sovereignty, as it recognizes that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children” and carries out the United States role as trustee by “protecting Indian children who are members of or are eligible for membership in an Indian tribe.”
 Brackeen v. Zinke, No. 4:17-cv-00868-O, 2018 U.S. Dist. LEXIS 173115, at *1 (N.D. Tex. Oct. 4, 2018)
 Id. at *5-*6. The defendants also include Secretary of the Interior Ryan Zinke and BIA Director Bryan Rice in their official capacities.
Id. at *33-*34. The plaintiffs also claim that the ICWA and Final Rule violate the Fifth Amendment’s substantive due process requirement, the Tenth Amendment’s anti-commandeering principle, and exceed the scope of the Indian Commerce Clause, under which Congress claims its authority to enact the ICWA. Additionally, the plaintiffs claim the Final Rule violates the Administrative Procedures Act and the ICWA violates Article I of the Constitution. These claims are not discussed in this article. The judge granted summary judgement in favor of the plaintiffs on every claim but the substantive due process claim.
 92 Stat. 3069, 25 U.S.C. §§ 1901-1963.
 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989).
 95 P.L. 608, 92 Stat. 3069, § 2(4).
 25 U.S.C. §1903(4).
 Id. at §105(a) (emphasis added). Other key provisions of the ICWA that exceed the scope of this article include granting tribes exclusive jurisdiction over child custody for Indian children residing or domiciled in the reservation, and urging states transfer jurisdiction to tribes for foster care placement or termination of parental rights of Indian children that do not reside on the reservation. Id. at § 101.
 Guidelines for State Courts; Indian Child Custody Proceedings 44 Fed. Reg. 67,584.
 Indian Child Welfare Act Proceedings (“Final Rule”), 25 C.F.R. § 23.101 (2016). In the Final Rule, the BIA clarified that moving parties must establish “good cause” for deviating from the ICWA’s adoption placement preferences by “clear and convincing evidence.” Id. at § 23.123(b).
 Rice v. Cayetano, 528 U.S. 495, 519 (2000).
 Id. at 515.
 Id. at 517.
 Brackeen at *37-*38.
 Morton v. Mancari, 477 U.S. 535, 554-555 (1974).
 Brackeen, at *36-*38.
 Brackeen, at *40.
 Id.at *43.
 Id. At *41.
 25 U.S.C. § 1901(5).
 25 U.S.C. § 1901(3).