By: Maya Martin Tsukazaki
The Supreme Court is scheduled to hear the case Brackeen v. Haaland this term. This case challenges the legality of the Indian Child Welfare Act (“ICWA”). Congress passed ICWA in 1978, which was drafted to respond to the United States government’s historical practice of separating Native children from their tribes and families, which resulted in cultural genocide. The law in part protects the rights of Native tribes to exercise jurisdiction over child custody cases involving children who are either (1) members of a tribe or (2) eligible for tribal membership. Through ICWA, Native children are more likely to be placed within their tribe or with other Native families.
A steady stream of litigation has challenged ICWA in the past several decades. In Brackeen, appellants are challenging the legality of ICWA on multiple legal theories, including arguments that the law strips states of their jurisdiction and, as a result, the law and associated regulations violate the Administrative Procedures Act. However, one of the appellant’s central and most controversial arguments is that ICWA violates the equal protection clause because it is classifying children based on “race” – specifically, by distinguishing Native children from other non-Native children in custody proceedings. The appellants argue that Native children thus experience disparate treatment in custody proceedings due to the preference for placing children with Native families. Thus, the Court must apply strict scrutiny when analyzing the purpose of ICWA, which, according to the appellants, the law would be unable to withstand. The Fifth Circuit disagreed, using decades of precedent from federal courts to find that ICWA protects the rights of members of tribes as political entities. The Supreme Court is due to hear oral arguments on this case. The Supreme Court should uphold the Fifth Circuit’s decision, rejecting the appellant’s argument by finding that the protections for “Indian children” under ICWA are not a racial classification, but are a means of protecting the rights of sovereign tribes in the U.S.
Supreme Court cases over the past century firmly establish that tribes are afforded certain protections due to their sovereignty. These protections are not based solely on race, but stem from the inherent sovereignty of Indigenous nations as distinct political communities. In the case Morton v. Mancari, non-Native persons challenged a policy that gave hiring preferences to Indigenous persons at the Board of Indian Affairs. The Supreme Court found the preferences were not discriminatory because members of U.S.-recognized tribes are “members of quasi-sovereign tribal entities”; thus, the classifications were not based on race. Several years later, in United States v. Antelope, the Court affirmed Morton, holding that a statute putting enrolled tribal members under federal criminal jurisdiction was not a racial distinction, but a distinction based on tribal membership.
These cases gave certain distinctions to tribal members in a means similar to the definitions in ICWA, which regards the custody of “Indian children.” As the Navajo Nation noted in their brief to the Supreme Court, the term “Indian” in ICWA is defined according to membership in a sovereign tribal nation, not according to any racial classification.Thus, the Court would be inappropriately applying strict scrutiny when evaluating the legislative purpose of the bill, despite the appellant’s argument. Instead, the Court should uphold the Fifth Circuit’s decision that ICWA’s distinction between “Indian children” and other children is a political classification based on membership or eligibility for membership in a sovereign tribal nation.
Colonizing powers stripped tribes of much of their power and legal sovereignty through violence and broken treaties, but U.S. law has affirmed the inherent sovereignty which allows tribes to identify and define their membership. ICWA is one of these laws which protects the inherent sovereignty of tribes to exercise their jurisdiction over their own members. The appellants in Brackeen are attempting to distract from the historic and cultural importance of ICWA by claiming that the law is a form of reverse racism. This is not only historically inaccurate when considering the ongoing separation of Native children from their families, but it does not align with federal court precedent. The Supreme Court should stand with its precedent and find that the protections in ICWA cannot be challenged for alleged discrimination based on race because tribal membership is based on political classification and the inherent sovereignty of tribal nations.
 994 F.3d 249 (5th Cir. 2021), appeal docketed No. 21-378 (U.S. Sept. 8, 2021).
 For more on the background of the case and the children who are the subjects of the lawsuit, the author recommends the podcast This Land, hosted by Rebecca Nagle.
 25 U.S.C. §§1901-1963.
 This blog uses the term “Native” to refer specifically to indigenous persons who are members of tribes that are located within what is now considered the United States to distinguish from Indigenous persons from other parts of the globe that currently reside in the United States. It is worth noting that ICWA only applies to individuals who are members of tribes that are recognized by the federal government of the United States and does not include Indigenous persons who are members of tribes that have not been recognized. 25 U.S.C. § 1903 (3)-(4).
 Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act (2011), available athttps://narf.org/nill/documents/icwa/index.html; see also Margaret D. Jacobs, Remembering the “Forgotten Child”: The American Indian Child Welfare Crisis of the 1960s and 1970s, 37 Am. Indian Q. 136, 138–39 (2013) (describing the history of government-supported separations of Native families since the 1880s); Anita Sinha, A Lineage of Family Separation, 87 Brooklyn L. Rev. (manuscript at 15-17) (forthcoming 2022), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3882269.
 Id.; see also 25 U.S.C. §§1911-1914.
 A Practical Guide to the Indian Child Welfare Act, supra note 3.
 See Matthew Newman & Kathryn E. Fort, Legal Challenges to ICWA: An Analysis of Current Case Law, Am. Bar. Ass’n (Jan. 1, 2017), https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol-36/january-2017/legal-challenges-to-icwa–an-analysis-of-current-case-law/.
 See Brackeen, 994 F.3d at 316-17, 352-53.
 Petition for a Writ of Certiorari at 16, 20, Brackeen v. Haaland, No. 21-380 (U.S. Sept. 3, 2021).
 See id. at 2-3 (arguing Native children are disadvantaged when there is a preference for placement with a Native family over “all non-Indian families”).
 See id. (arguing that ICWA cannot withstand strict scrutiny because it is not sufficiently narrowly tailored to a legitimate purpose that would justify using the racial classification).
 994 F.3d at 332, 344-45. The Fifth Circuit also found that ICWA is clearly related to the legislative purpose of preventing the separation of Native children and families to non-Native homes. Id. at 335-336.
 Native persons and communities have been racialized for centuries, so it is important to note that this legal distinction should not be used to broadly claim that Native communities have not experienced racialized violence or do not have unique cultural and ethnic identities. Scholars have also argued that use of blood quantum measures also furthers the racialization of Native identity in the United States. See Desi Rodriguez-Lonebear, The Blood Line: Racialized Boundary Making and Citizenship among Native Nations, 7 Sociology of Race and Ethnicity 527 (2021) (analyzing the racialization of eligibility for tribal membership); Eva Marie Garroutte, The Racial Formation of American Indians: Negotiating Legitimate Identities within Tribal and Federal Law, 25 Am. Indian Q. 224 (2001) (discussing historical legal definitions of Native identity in U.S. law).
 See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978) (quoting Worcester v. Georgia, 31 U.S. 515, 519 (1832)) (stating that tribes are “distinct, independent political communities”); see also Montana v. United States, 450 U.S. 544, 564 (1981) (stating “Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members,” among other tribal matters).
 417 U.S. 535, 551-52 (1974).
 Id. at 554.
 430 U.S. 641, 645 (1977) (holding that the fact that the appellees, enrolled members of the Couer d’Alene tribe, were tried in federal court under federal criminal law was not a violation of equal protection).
 Compare 25 U.S.C. § 1903(3)-(4) (defining “Indian” and “Indian children” according to tribal membership), with Morton, 417 U.S. at 552, 555 (discussing 25 U.S.C. §§ 43-45 and 25 C.F.R. § 5.1(a)-(b), which defines “Indian” persons as members of recognized tribes and their descendants) and Antelope, 430 U.S. at 645 (referencing the Major Crimes Act, 18 U.S.C. § 1153 and 25 U.S.C. § 1301, defining “Indian tribe” to include those subject to the jurisdiction of the United States).
 25 U.S.C. § 1903(3); Brief for the Navajo Nation in Opposition at 29, Brackeen v. Haaland, No. 21-380 (U.S. Dec. 8, 2021) (citing Morton, 417 U.S. at 553).
 Brackeen v. Haaland, 994 F.3d 249, 340 (5th Cir. 2021) (explaining why ICWA’s classification of “Indian children” is a political affiliation and not a racial category).
 See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 72 (1978) (upholding the rights of tribes to define membership without interference from federal courts).
 See Nick Estes, Why is the US suddenly interested in Native American adoption law? Guardian (Aug. 23, 2021), https://www.theguardian.com/commentisfree/2021/aug/23/why-is-the-right-suddenly-interested-in-native-american-adoption-law.
 Sinha, supra note 3, at 17-19.
 See United States v. Antelope, 430 U.S. 641, 645 (1977); Morton v. Mancari, 417 U.S. 535, 554 (1974).