August 29, 2024

The constitutionality of the Indian Child Welfare Act (ICWA) under the U.S. Constitution’s equal protection requirements.

This case pertains to two Red Lake Nation children who were fostered for a time by non-Native foster parents until they were moved to an ICWA-preferred foster placement with a relative located on the Nation’s reservation. The non-Native foster parents challenged the children’s placement, including challenging the constitutionality of ICWA and the Minnesota Indian Family Preservation Act (MIFPA). The State of Minnesota Court of Appeals on June 3, 2024, upheld MIFPA as constitutional and did not address the constitutionality of ICWA. The non-Native foster parents petitioned for review, and the State of Minnesota Supreme Court granted review on July 2, 2024. Appellants and respondents have now filed their briefs, and amicus briefs were filed in support of respondents on August 28, 2024, including a Tribal amicus brief. The federal government filed a letter with the court on July 25, 2024, asserting that the constitutionality of ICWA is not properly before the court and providing notice that the federal government may submit an amicus brief if the case moves forward on those grounds. Appellants’ reply brief is due September 4, 2024, and oral argument is set for September 30, 2024.

Appellants argue ICWA and MIFPA violate the Constitution’s equal protection requirements by imposing race-based placement preferences for Native children. They assert that different treatment of Native people is political in nature and subject to rational basis review under equal protection analysis only when that different treatment is limited to Tribal citizens and furthers Tribal Nations’ self-governance.

The U.S. Supreme Court in Brackeen held the petitioners in that case lacked standing to bring equal protection challenges to ICWA, but the justices noted that a case brought up through state court could establish the requisite standing. Appellants in seeking review by the Minnesota Supreme Court in this case quoted Justice Kavanaugh’s invitation from Brackeen, and the litigating attorneys may be attempting to position this case to go up to the U.S. Supreme Court. There is a concerted effort—within the ICWA context but also in other contexts—to elicit from the Supreme Court a new decision narrowing Mancari’s equal protection principles to prevent beneficial treatment for Tribal Nations and Native people.

USET SPF has been working to assist Indian Country as well as the U.S. Department of Justice to make litigation arguments that are designed to holistically protect delivery on trust and treaty obligations, rather than to only rebut arguments made in a particular equal protection attack. USET SPF was approached about participating in drafting the Tribal amicus brief with the Native American Rights Fund (NARF). Thereafter, we worked closely with NARF to help structure, research, and draft the equal protection arguments in the brief, and USET SPF joined the brief as a signatory, which you can view here. In addition to arguing that ICWA’s constitutionality is not properly before the court, the Tribal amicus brief explains that the political relationships between Tribal Nations and their people and between the United States and Tribal Nations are the underlying legal basis for our special, non-suspect political status under the U.S. Constitution, and that ICWA is grounded in both of these political relationships.

The press release sent out by NARF today [linked here], includes a quote from President Francis, "We stand united with our relatives across Indian Country in proactively defending Native families, Tribal Nations’ inherent sovereignty, and the United States’ ability and responsibility to deliver on its trust and treaty obligations." 

In the Matter of the Welfare of the Children of: L. K., Parent, Case No. A23-1762, before the State of Minnesota Supreme Court.

For more information, please contact Liz Malerba, USET SPF Director of Policy and Legislative Affairs, or Katie Klass, USET SPF General Counsel.

Established in 2014, the USET Sovereignty Protection Fund (USET SPF) is a non-profit, inter-Tribal organization advocating on behalf of thirty-three (33) federally recognized Tribal Nations from the Northeastern Woodlands to the Everglades and across the Gulf of Mexico. USET SPF is dedicated to promoting, protecting, and advancing the inherent sovereign rights and authorities of Tribal Nations and in assisting its membership in dealing effectively with public policy issues.