The state of Texas again has urged the U.S. Supreme Court to review the Indian Child Welfare Act, calling the law an unconstitutional “race based child custody scheme” that requires states to treat Native children “as resources to be managed for the benefit of their race, rather than in accordance with their best interests.”
In a reply brief Friday, Texas officials said the Supreme Court must finally resolve constitutional questions raised by the 1978 law, which was enacted to limit the number of Native children being adopted outside their communities. The state also knocked arguments made by its federal and tribal opponents, saying their “‘anything goes’ position is wrong: the Constitution does not grant Congress open-ended authority to interfere in state-court proceedings merely because an Indian is involved.”
Supporters and opponents of ICWA have filed separate petitions asking that the high court review a 325-page divided opinion issued by the full Fifth Circuit earlier this year. The decision held that certain portions of the ICWA unconstitutionally commandeered state officials but rejected U.S. District Judge Reed O’Connor’s 2018 opinion that the ICWA term “Indian child” is an unconstitutional racial classification.
Texas told the Supreme Court on Friday that federal and tribal parties have all failed to identify “any constitutional text that gives Congress the authority to impose ICWA’s child-custody regime for Indian children on the states. That is because none exists.”
“Instead, respondents group together ‘Commerce,’ treaties, a historical narrative, ‘preconstitutional’ powers, and a sense of moral obligation to create a virtually limitless and atextual power over Indian affairs that includes controlling any state child-custody proceeding involving an Indian child,” the state argued.
The Fifth Circuit found that Congress had the authority over tribal affairs under the Indian commerce clause of the U.S. Constitution to enact ICWA.
But “domestic affairs are not ‘commerce,’” the Texas brief stated. Only the Supreme Court can determine the limits of Congress’ power and authority over states when it comes to tribes and their members, Texas said, pointing to the high court’s 2004 decision in U.S. v. Lara 
While the federal government and tribes insist that the term “Indian child” denotes sovereign citizenship — and not race — “this court has already recognized that the question is not so simple,” Texas argued, pointing to language in its Morton v. Mancari 
“And allowing someone to play an ‘ICWA trump card’ to ‘override … the child’s best interests’ is not a legitimate, nonracial goal,” Texas told the court. “ICWA’s tribal distinctions are hopelessly bound up in racial distinctions, especially as tribal membership is often linked to race and ancestry.”
Texas then went on to invoke the use of blood quantum standards, originally introduced by thefederal government, which are used to determine tribal citizenship. Since tribal citizenship is based on biological race, “a statute that classifies individuals by tribal membership is not necessarily political,” the brief continued.
The experiences of would-be adoptive parents bear out ICWA’s “brazenly racial goal” of ensuring that Native children are not raised by non-Native families, state officials argued.
The initial suit was filed by a white evangelical couple who wanted to adopt two Native children they fostered. They joined the states of Texas, Indiana and Louisiana in arguing that the ICWA violated the U.S. Constitution by using racial preferences in placing Native American children rather than focusing on the best interest of the child.
The federal government and the tribes have filed separate petitions for review of the parts of the ruling they lost, while Texas, Louisiana and Indiana, as well as the non-Native parents, have each filed petitions calling for broader consideration of the ruling.
In December, federal officials reminded the court that the Fifth Circuit had unanimously rejected the state’s equal protection claim, on the grounds that it lacked standing. Texas disputed that finding again Friday, saying the state is “entitled to special solicitude in the standing analysis and need show only (1) a procedural right to challenge ICWA, and (2) an impact on a quasi-sovereign interest.”
“And Texas has a quasi-sovereign interest in the health and well-being of its residents,” according to the brief.
The parties did not immediately reply to requests for comment Monday afternoon.
The petitioning tribes are represented by Kathryn E. Fort of the Indian Law Clinic at Michigan State University College of Law, Adam H. Charnes and Rob Roy Smith of Kilpatrick Townsend & Stockton LLP and Ian Heath Gershengorn, Keith M. Harper, Zachary C. Schauf, Illyana A. Green and Victoria Hall-Palerm of Jenner & Block LLP.
Amici tribes and tribal organizations are represented by Samuel F. Daughety of Dentons and John E. Echohawk, Erin C. Dougherty Lynch, Maggie Massey and Daniel Lewerenz of the Native American Rights Fund.
The parents are represented by Mark D. Fiddler of Fiddler Osband LLC and Matthew D. McGill, Lochlan F. Shelfer, David W. Casazza, Aaron Smith and Robert A. Batista of Gibson Dunn & Crutcher LLP.
Texas is represented by Ken Paxton, Brent Webster, Judd E. Stone II, Lanora C. Pettit, Michael R. Abrams and Beth Klusmann of the Texas Office of the Attorney General.
The Department of the Interior is represented by Brian H. Fletcher, Todd Kim, Edwin S. Kneedler, Frederick Liu and Rachel Heron of the U.S. Department of Justice.
The Navajo Nation is represented by Doreen McPaul, Paul Spruhan, Louis Mallette, Jason Searle and Sage Metoxen of the Navajo Nation Department of Justice, and by Jeffrey L. Fisher, Edward C. DuMont and Kendall Turner of Stanford Law School’s Supreme Court Litigation Clinic.
The case is Cherokee Nation et al. v. Chad Everet Brackeen et al., case number 21-377, in the Supreme Court of the United States.
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