The U.S. Supreme Court made headlines with its decision in Haaland v. Brackeen, a case that has kept all of Indian Country holding its breath in anticipation. In a historic 7-2 decision, the Court upheld the Indian Child Welfare Act (ICWA) in support of tribal sovereignty, although many Tribal attorneys remain concerned.

Oral arguments in November 2022 addressed five separate issues related to the petitioners’ claims.  They challenged the constitutionality of the ICWA, including whether Congress had authority under its Article I powers to promulgate ICWA; whether Congress unlawfully delegated its power under ICWA to tribes to alter ICWA’s placement preference; whether the federal government unlawfully commandeered the states under ICWA; whether ICWA violated the Constitution’s Equal Protection Clause; and whether plaintiffs even had standing to bring their claims.

The court rejected all of the petitioners’ claims. Their challenges regarding Congress’s Article I power and anti-commandeering were rejected on the merits, and the non-delegation and equal protection claims were dismissed for lack of standing. Procopio stands with Tribes in supporting ICWA and Tribal sovereignty, and our firm was honored to submit an amicus brief to the Fifth Circuit on behalf of Native American Women, Indian Tribes, and Organizations in support of upholding ICWA.

So why has this result left so many Tribal attorneys still wringing their hands? At first glance, the Supreme Court Brackeen opinion is decidedly favorable for Tribes. However, while ICWA lives to see another day, the Court’s decision to not address the merits of petitioners’ equal protection claim leaves ICWA—an important safeguard to Tribal sovereignty—vulnerable to future challenges, a condition emphasized in Justice Brett Kavanaugh’s concurring opinion.

Specifically, petitioners challenged ICWA’s placement preference provisions as racially discriminatory in violation of the equal protection clause of the Fifth and Fourteenth Amendments. These provisions require Indian children who are either enrolled, or eligible to be enrolled, in a tribe to be preferentially placed with their biological families first, tribal families next, and then with other Indian families over non-Indian families. ICWA’s constitutionality stems from both Congress’s Article I powers and precedent establishing Indian classifications as political rather than racial.

In rejecting both the individual petitioners’ and Texas’s equal protection claims, the Court was careful to note the claims were dismissed not on their merits, but because “no party before the Court has standing to raise them.” While the individual petitioners lacked standing due to seeking an injunction against the wrong parties, Texas lacked standing by virtue of being a sovereign state with no equal protection rights of its own.  Justice Amy Coney Barrett’s majority opinion left the equal protection issue to be addressed later, “when it is properly raised by a plaintiff with standing”—a seeming invitation for future challenges.

Indian Country can breathe easier, for now.  The Court strongly affirmed the constitutionality of the Federal Government’s relationship with Tribal Nations but, with the equal protection arguments largely left for another day to decide, concern over Indian child welfare and Tribal Sovereignty remains. The decision is not everything supporters of ICWA hoped for, but it is also not the decision we all feared.

What can Tribes do in the wake of this decision? They can continue to work to secure funding and support for Tribal justice and social service systems, either through internal economic allocation plans, lobbying for funding from the unrestricted ICWA funds, or changing the IV-E plan requirements for tribal governments to increase access to foster care funding. Lastly, Tribes can continue to do the important work with the states to propose new, or strength existing, state ICWA laws, such as AB 81 authored by Assemblymember James Ramos that is currently before the California legislature. This will ensure the welfare of Indian children remains protected regardless of any future Supreme Court decisions.