Nos.

21-376, 21-377, 21-378, 21-380

================================================================================================================
In The
Supreme Court of the United States
---------------------------------♦---------------------------------
DEB HAALAND, SECRETARY OF THE INTERIOR, et al.,
Petitioners,
v.
CHAD EVERET BRACKEEN, et al.,
Respondents.
[For Continuation Of Caption, See Inside Cover]
---------------------------------♦---------------------------------
On Petitions For Writs Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
---------------------------------♦---------------------------------
BRIEF AMICI CURIAE OF
GOLDWATER INSTITUTE, TEXAS PUBLIC
POLICY FOUNDATION, AND CATO INSTITUTE
IN SUPPORT OF STATE OF TEXAS AND
BRACKEEN, ET AL.
---------------------------------♦---------------------------------
ILYA SHAPIRO TIMOTHY SANDEFUR*
TREVOR BURRUS SCHARF-NORTON CENTER FOR
CATO INSTITUTE CONSTITUTIONAL LITIGATION
1000 Mass. Ave. NW AT THE GOLDWATER INSTITUTE
Washington, DC 20001 500 E. Coronado Rd.
(202) 842-0200 Phoenix, AZ 85004
[email protected] (602) 462-5000
[email protected] litigation@
goldwaterinstitute.org
ROBERT HENNEKE
TEXAS PUBLIC *Counsel of Record
POLICY FOUNDATION
901 Congress Ave.
Austin, TX 78701
(512) 472-2700
[email protected]
Counsel for Amici Curiae
Goldwater Institute, Texas Public
Policy Foundation and Cato Institute
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
 ---------------------------------♦---------------------------------
CHEROKEE NATION; ONEIDA NATION;
QUINALT INDIAN NATION;
MORONGO BAND OF MISSION INDIANS,
Petitioners,
v.
CHAD EVERET BRACKEEN, et al.,
Respondents.
---------------------------------♦---------------------------------
THE STATE OF TEXAS,
Petitioner,
v.
DEB HAALAND, SECRETARY OF THE
U.S. DEPARTMENT OF THE INTERIOR, et al.,
Respondents.
---------------------------------♦---------------------------------
CHAD EVERET BRACKEEN, et al.,
Petitioners,
v.
DEB HAALAND, SECRETARY OF THE
U.S. DEPARTMENT OF THE INTERIOR, et al.,
Respondents.
---------------------------------♦---------------------------------
 i

QUESTIONS PRESENTED

State child-custody proceedings generally are gov-

erned by state law, with placement decisions based on
the child’s best interests. The Indian Child Welfare Act
of 1978 (“ICWA”), 25 U.S.C. §§ 1901–1963, however,
dictates that, in any custody proceeding “under State
law” involving an “Indian child,” “preference shall be
given” to placing the child with “(1) a member of the
child’s extended family; (2) other members of the In-
dian child’s tribe; or (3) other Indian families” rather
than with non-Indian adoptive parents. Id. § 1915(a);
see also id. § 1915(b). The en banc Fifth Circuit frac-
tured over the constitutionality of the placement pref-
erences, affirming in part the lower court’s decision
striking them down as unconstitutional.
The questions presented are:
1. Whether ICWA’s placement preferences—
which disfavor non-Indian adoptive families in child
placement proceedings involving an “Indian child” and
thereby disadvantage those children—discriminate on
the basis of race in violation of the U.S. Constitution.
2. Whether ICWA’s placement preferences ex-
ceed Congress’s Article I authority by invading the
arena of child placement—the “virtually exclusive prov-
ince of the States,” Sosna v. Iowa, 419 U.S. 393, 404
(1975)—and otherwise commandeering state courts and
state agencies to carry out a federal child-placement
program.
 ii

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................ i
TABLE OF CONTENTS ...................................... ii
TABLE OF AUTHORITIES ................................. iv
IDENTITY AND INTEREST OF AMICI CURIAE... 1
INTRODUCTION AND SUMMARY OF REA-
SONS FOR GRANTING THE PETITIONS ..... 3
REASONS FOR GRANTING THE PETITION ..... 5
I. ICWA bars states from taking steps neces-
sary for protecting abused and neglected
“Indian children” ....................................... 5
A. Native children are at greater risk of
abuse and neglect than any other chil-
dren in the United States, but ICWA
prevents states from protecting them .... 6
B. ICWA’s restrictions and mandates pre-
vent states from protecting these chil-
dren from harm ................................... 8
1. The beyond a reasonable doubt
standard .......................................... 9
2. The active efforts requirement ....... 11
3. The best interests of the Indian
child ................................................ 16
II. ICWA is depriving Native parents of the
ability to protect their children ................. 20
 iii

TABLE OF CONTENTS—Continued
Page
III. ICWA deprives at-risk “Indian children” of
the opportunity to find safe, permanent,
loving homes .............................................. 22
CONCLUSION..................................................... 26
 iv

TABLE OF AUTHORITIES
Page
CASES
Adoption of Halloway, 732 P.2d 962 (Utah 1986) .......22
Adoptive Couple v. Baby Girl, 570 U.S. 637
(2013) ..................................................... 10, 12, 16, 26
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel.
Barez, 458 U.S. 592 (1982) ......................................19
Dawavendewa v. Salt River Project Agric. Im-
provement & Power Dist., 154 F.3d 1117 (9th
Cir. 1998) ...................................................................9
Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973) ...........9
Finlay v. Finlay, 148 N.E. 624 (N.Y. App. 1925) .........16
Gila River Indian Cmty. v. Dep’t of Child Safety,
395 P.3d 286 (Ariz. 2017) ..........................................1
In re Alexandria P., 204 Cal. Rptr. 3d 617 (Cal.
App. 2016), cert. denied, 137 S. Ct. 713 (2017) .... 18, 25
In re Bridget R., 49 Cal. Rptr. 2d 507 (Cal. App.
1996) ........................................................................10
In re C.H., 997 P.2d 776 (Mont. 2000) ........................18
In re C.J. Jr., 108 N.E.3d 677 (Ohio App. 2018) ...........1
In re C.J. Jr., 15JU-232 (Ct. Common Pl. Frank-
lin Co., June 25, 2018) .............................................13
In re C.J. Jr., 2019-Ohio-1863 .....................................13
In re Interest of Shayla H., et al., Doc. JV13
(Lancaster County Juvenile Court, May 1,
2015) ........................................................................13
 v

TABLE OF AUTHORITIES—Continued
Page
In re J.P.C., CV-17-0298-PR (Ariz. Feb. 13,
2018) ........................................................................20
In re Kelsey S., 1 Cal.4th 816 (1992) ..........................17
In re L.M., 572 S.W.3d 823 (Tex. App. 2019) ..............17
In re Marriage of Wellman, 164 Cal. Rptr. 148
(Cal. App. 1980) .......................................................17
In re Marriage of Williams, 58 Cal. Rptr. 3d 877
(Cal. App. 2007) .......................................................18
In re Robert L., 21 Cal. App. 4th 1057 (1993) ............17
In re Shayla H., 846 N.W.2d 668 (Neb. App.
2014), aff ’d 855 N.W.2d 774 (Neb. 2014) ................12
In re T.A.W., 383 P.3d 492 (Wash. 2016) ................. 1, 21
Kent K. v. Bobby M., 110 P.3d 1013 (Ariz. 2005) ........11
King v. Lyons, 457 S.W.3d 122 (Tex. App. 2014).........17
Mississippi Band of Choctaw Indians v. Holy-
field, 490 U.S. 30 (1989) ..........................................22
Oyama v. California, 332 U.S. 633 (1948) ....................9
People ex rel. J.S.B., Jr., 691 N.W.2d 611 (S.D.
2005) ........................................................................12
People in Interest of Z.C., 487 P.3d 1044 (Colo.
App. 2019) ................................................................18
R.P. v. L.A. Cnty. Dep’t of Children & Family
Servs., 137 S. Ct. 713 (2017) .....................................3
Renteria v. Shingle Springs Band of Miwok In-
dians, No. 2:16-cv-1685-MCE-AC, 2016 WL
4597612 (E.D. Cal. Sept. 2, 2016) .............................1
 vi

TABLE OF AUTHORITIES—Continued
Page
Rice v. Cayetano, 528 U.S. 495 (2000) ..........................4
S.S. v. Colo. River Indian Tribes, 138 S. Ct. 380
(2017) ................................................................... 1, 11
S.S. v. Stephanie H., 388 P.3d 569 (Ariz. App.
2017), cert. denied sub nom. S.S. v. Colorado
River Indian Tribes, 138 S. Ct. 380 (2017) .............11
Santosky v. Kramer, 455 U.S. 745 (1982) .....................9
Sosna v. Iowa, 419 U.S. 393 (1975) ............................... i
Stanley v. Illinois, 405 U.S. 645 (1972)................. 17, 19
Troxel v. Granville, 530 U.S. 57 (2000) ........... 20, 21, 22
Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152
(Tex. App. 1995) .......................................................18

CONSTITUTIONAL PROVISIONS
U.S. Const. amend. XIV ..............................................20

STATUTES
8 U.S.C. § 1401(b) ........................................................20
25 U.S.C. § 1903(3) ......................................................22
25 U.S.C. § 1912(d) ......................................................11
25 U.S.C. § 1912(f ) ......................................................10
25 U.S.C. § 1914 ..........................................................23
25 U.S.C. § 1915 ..........................................................22
25 U.S.C. § 1915(a) ........................................................ i
 vii

TABLE OF AUTHORITIES—Continued
Page
25 U.S.C. § 1915(b) ......................................................23
42 U.S.C. § 671(a)(15)(D) ............................................12
A.R.S. § 8–537 .............................................................20
Adoption and Safe Families Act, Pub. Law 105-
89, § 111 Stat. 2115 (1997)......................................11
The Indian Child Welfare Act of 1978 (“ICWA”),
25 U.S.C. §§ 1901–1963 ................................... passim
Tohono O’odham Code tit. 3, ch. 1, art. 5,
§ 1517(F) ..................................................................21

REGULATIONS
25 C.F.R. § 23.122(a) ...................................................10
80 Fed. Reg. 10146-02 § F.4(c)(3) (Feb. 25, 2015) .......19
81 Fed. Reg. 38814 ......................................................12
81 Fed. Reg. 38847 ......................................................19

OTHER AUTHORITIES
2 Story, Commentaries on Equity Jurisprudence
as Administered in England and America
(13th ed. 1886) .........................................................17
Adoptive Couple v. Baby Girl by the Casey Fam-
ily Programs, et al. (2013 WL 1279468) .................16
Arizona Department of Child Safety, Statement
on the Death of One-Year-Old Josiah Gishie,
Oct. 12, 2018 ............................................................15
 viii

TABLE OF AUTHORITIES—Continued
Page
Attorney General’s Advisory Committee on Amer-
ican Indian/Alaska Native Children Exposed
to Violence: Ending Violence so Children Can
Thrive (U.S. Dep’t of Justice, 2014)...........................6
Bakeis, The Indian Child Welfare Act of 1978: Vi-
olating Personal Rights for the Sake of the
Tribe, 10 Notre Dame J.L. Ethics & Pub. Pol’y
543 (1996) ................................................................24
Barsh, The Indian Child Welfare Act of 1978: A
Critical Analysis, 31 Hastings L.J. 1287, 1334
(1980) .........................................................................7
Barth, et al., Adoption of American Indian Chil-
dren: Implications for Implementing the In-
dian Child Welfare and Adoption and Safe
Families Acts, 24 Children & Youth Servs. R.
139 (2002) ..................................................................7
Begay & Wilczynski, Barriers to Recruiting Na-
tive American Foster Homes in Urban Areas 2
(unpublished Masters thesis, CSU San Ber-
nardino, 2018) .........................................................23
Clay & Ellis, U.S. Law Pushed Boy Home Before
He Died, The Oklahoman, Oct. 4, 2007 ..................14
Colin, Infant Attachment: What We Know Now
(U.S. Dep’t of Health & Human Servs., 1991) ........25
Culp-Ressler, The Shocking Rates of Violence
and Abuse Facing Native American Kids,
ThinkProgress, Nov. 18, 2014 ...................................6
Flatten, Death on a Reservation (Goldwater In-
stitute, 2015) .............................................................1
 ix

TABLE OF AUTHORITIES—Continued
Page
Friese, et al., Drinking among Native American
and White Youths: The Role of Perceived
Neighborhood and School Environment, 14 J.
Ethnicity in Substance Abuse 287 (2015) ................6
Heimpel, L.A.’s One and Only Native American
Foster Mom, The Imprint, June 14, 2016 ......... 23, 24
Kastelic, Testimony before National Task Force
on American Indian/Alaska Native Children
Exposed to Violence in the Home (National
Indian Child Welfare Association, 2013) ..................7
Kennedy, Interracial Intimacies (2003) .......................8
Koehle, DCS Claims ‘Jurisdictional, Legal Issues’
in Phoenix Toddler’s Death Case, ABC15.com,
Oct. 15, 2018 ............................................................15
Krol, Inside the Native American Foster Care
Crisis Tearing Families Apart, Vice.com, Feb.
7. 2018 ............................................................... 15, 23
MacEachron, et al., The Effectiveness of the In-
dian Child Welfare Act of 1978, 70 Soc. Serv.
R. 451 (1996)............................................................26
Major, et al., Youth Gangs in Indian Country,
OJJDP Juvenile Justice Bulletin, Mar. 2004 ...........6
Margolin, Every Adolescent Deserves A Parent,
40 Cap. U. L. Rev. 417 (2012) ..................................24
Murray, Foster Family Who Raised Slain 5-year-
old Explains How System Repeatedly Failed
Him, Great Falls Tribune, Nov. 22, 2019 ................14
 x

TABLE OF AUTHORITIES—Continued
Page
National Indian Child Welfare Association, Set-
ting the Record Straight: The Indian Child
Welfare Act Fact Sheet (Sept. 2015) ..........................7
Olson, The Constitutional Flaws of the Indian
Child Welfare Act, Reason.com, Apr. 22, 2013 ..........2
Olson, This Isn’t the Way to Protect Families’
Rights, Cato Unbound, Aug. 10, 2016 .......................2
Pharris, et al., American Indian and Alaska Na-
tive Youth Aging out of Foster Care: A Life
Course Analysis, Presentation to Society for
Social Work and Research, Jan. 16, 2020 ...............24
Riley, The New Trail of Tears (2016) ..........................12
Sandefur, Escaping the ICWA Penalty Box: In
Defense of Equal Protection for Indian Chil-
dren, 37 Child. Legal Rts. J. 1 (2017).................. 2, 26
Sandefur, Recent Developments in Indian Child
Welfare Act Litigation: Moving Toward Equal
Protection?, 23 Tex. Rev. L. & Pol. 425 (2019)..... 2, 21
Sandefur, The Federalism Problems with the In-
dian Child Welfare Act, 46 Am. Ind. L. Rev. —
(forthcoming, 2022) ...................................................2
Sandefur, The Unconstitutionality of the Indian
Child Welfare Act, 25 Tex. Rev. L. & Pol. —
(forthcoming, 2022) ...................................................2
Stuart, Native American Foster Children Suffer
Under a Law Originally Meant to Help Them,
Phoenix New Times, Sep. 7, 2016 ..................... 23, 24
 xi

TABLE OF AUTHORITIES—Continued
Page
Suicide Among American Indians/Alaska Na-
tives, Suicide Prevention Resource Center ..............6
U.S. Dep’t of Health & Hum. Servs., Child Mal-
treatment 2019 ..........................................................6
U.S. Dep’t of Health & Human Servs., The
AFCARS Report (June 23, 2020) ..............................7
 1

IDENTITY AND INTEREST

OF AMICUS CURIAE1
The Goldwater Institute (GI) is a nonpartisan
public policy foundation devoted to advancing the prin-
ciples of limited government and individual freedom.
Through its Scharf-Norton Center for Constitutional
Litigation, GI litigates and files amicus briefs when its
or its clients’ objectives are implicated. GI’s Equal Pro-
tection for Indian Children project is devoted to de-
fending Native American children and families against
the unconstitutional provisions of the Indian Child
Welfare Act (ICWA). Through that project, GI has liti-
gated or participated as amicus in ICWA cases nation-
wide, including in Arizona (Gila River Indian Cmty. v.
Dep’t of Child Safety, 395 P.3d 286 (Ariz. 2017)); Cali-
fornia (Renteria v. Shingle Springs Band of Miwok In-
dians, No. 2:16-cv-1685-MCE-AC, 2016 WL 4597612
(E.D. Cal. Sept. 2, 2016)); Ohio (In re C.J. Jr., 108
N.E.3d 677 (Ohio App. 2018)); and Washington (In re
T.A.W., 383 P.3d 492 (Wash. 2016)); as well as before
this Court (S.S. v. Colo. River Indian Tribes, 138 S. Ct.
380 (2017)). GI scholars have also published ground-
breaking research on the well-intentioned but pro-
foundly f lawed workings of ICWA. See, e.g., Flatten,
Death on a Reservation (Goldwater Institute, 2015)2;

1
Pursuant to Rules 37.3(a) and 37.6, counsel for amicus af-
firms that all parties consented to the filing of this brief, that no
counsel for any party authored it in whole or in part, and that no
person or entity, other than amici, their members, or counsel,
made a monetary contribution for its preparation or submission.
2
http://www.flipsnack.com/9EB886CF8D6/final-epic-pamplet.
html.
 2

Sandefur, Escaping the ICWA Penalty Box: In Defense

of Equal Protection for Indian Children, 37 Child. Le-
gal Rts. J. 1 (2017); Sandefur, Recent Developments in
Indian Child Welfare Act Litigation: Moving Toward
Equal Protection?, 23 Tex. Rev. L. & Pol. 425, 426
(2019); Sandefur, The Federalism Problems with the In-
dian Child Welfare Act, 46 Am. Ind. L. Rev. — (forth-
coming, 2022)3; Sandefur, The Unconstitutionality of
the Indian Child Welfare Act, 25 Tex. Rev. L. & Pol. —
(forthcoming, 2022).4
The Cato Institute is a nonpartisan public-policy
research foundation established in 1977 and dedicated
to advancing the principles of individual liberty, free
markets, and limited government. Cato’s Robert A.
Levy Center for Constitutional Studies was estab-
lished in 1989 to help restore the principles of limited
constitutional government that are the foundation of
liberty. Toward those ends, Cato publishes books and
studies, conducts conferences, produces the annual
Cato Supreme Court Review, and files amicus briefs in
this and other courts. Cato’s experts have published ex-
tensively on ICWA, see, e.g., Olson, The Constitutional
Flaws of the Indian Child Welfare Act, Reason.com,
Apr. 22, 20135; Olson, This Isn’t the Way to Protect Fam-
ilies’ Rights, Cato Unbound, Aug. 10, 2016,6 and Cato

3
https://ssrn.com/abstract=3853970.
4
https://ssrn.com/abstract=3823987.
5
https://www.cato.org/commentary/constitutional-flaws-indian-
child-welfare-act.
6
https://www.cato-unbound.org/2016/08/10/walter-olson/isnt-
way-protect-families-rights.
 3

has appeared as amicus in important ICWA cases. See,

e.g., R.P. v. L.A. Cnty. Dep’t of Children & Family Servs.,
137 S. Ct. 713 (2017).
The Texas Public Policy Foundation (TPPF) is a
non-profit, nonpartisan research organization founded
in 1989 and dedicated to promoting liberty, personal
responsibility, and free enterprise through academi-
cally-sound research and outreach. In accordance with
this mission, TPPF hosts policy discussions, authors
research, presents legislative testimony, and drafts
model ordinances to reduce the burden of government
on Texans. Through its Center for Families and Chil-
dren, TPPF pursues policies that will preserve fami-
lies, improve foster care, and protect parents and
children from unjustified, often counterproductive,
government interference.
GI, Cato, and TPPF have participated as amici at
every stage of this case. Given their experience and
expertise with regard to ICWA, they believe this brief
will aid the Court in its consideration of these peti-
tions.
---------------------------------♦---------------------------------

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE PETITIONS
These petitions are of critical importance. As
Texas’s and the federal government’s petitions explain,
the case is essential to resolve pressing questions
about Congress’s authority to dictate to states how
they may operate their child welfare laws. And as the
 4

tribal and federal petitions argue, this case is crucial

for ensuring the uniform application of federal Indian
law. But more important than any abstract question
of federalism is the impact of the questions presented
on the lives and well-being of countless children of Na-
tive American ancestry who, because they are deemed
“Indian” based solely on their genetic heritage, are
deprived of legal protections against abuse and ne-
glect.
ICWA strips states of the ability to protect at-risk
“Indian children,” limits these children’s options for
foster care, and effectively bars their adoption into per-
manent, loving homes. It also deprives Native Ameri-
can parents of their fundamental right to protect their
own children from harm. At this moment, it is deter-
ring otherwise willing adults from aiding at-risk “In-
dian children.” In short, ICWA is a major obstacle to
the safety and happiness of native children nationwide
who are entitled to the same legal protections their
non-Native peers receive. And it accomplishes this in
part by erecting a race- or national-origin-based dis-
tinction of the sort that is “odious to a free people.” Rice
v. Cayetano, 528 U.S. 495, 517 (2000) (citation omitted).
Certiorari is imperative to ensure that these children
receive justice.
To fully appreciate the exceptional importance of
these petitions, this brief examines how some of the
provisions of ICWA at issue here operate in practice,
 5

and explores how those provisions inflict harm on the

children ICWA is supposed to protect.
---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

I. ICWA bars states from taking steps neces-
sary for protecting abused and neglected
“Indian children.”
This case is imperative for the safety and welfare
of America’s most at-risk demographic: children of Na-
tive American ancestry whom ICWA classifies as “In-
dian children” based solely on their biological descent.7
The reason certiorari is urgent here is that ICWA
stands as a barrier to the protection of these children
and is inflicting incalculable harm on them as we
speak.

7
It is worth emphasizing that the provisions of ICWA ad-
dressed in these petitions do not apply in tribal courts. They apply
only to proceedings in state courts, regarding children over whom
state child welfare agencies and state courts would, but for ICWA,
exercise ordinary jurisdiction.
 6

A. Native children are at greater risk of

abuse and neglect than any other chil-
dren in the United States, but ICWA
prevents states from protecting them.
Native children are at greater risk of neglect,8 vi-
olence,9 gang activity,10 drug abuse, alcoholism,11 and
suicide,12 than any other group of children in America.
They suffer higher rates of abuse than children of any
other race (14.8 per 1,00013) and are overrepresented
in foster care—although they make up only one per-
cent of the national population, they account for two

8
See, e.g., Culp-Ressler, The Shocking Rates of Violence and
Abuse Facing Native American Kids, ThinkProgress, Nov. 18, 2014,
https://thinkprogress.org/the-shocking-rates-of-violence-and-abuse-
facing-native-american-kids-883449df0f63/.
9
See, e.g., Attorney General’s Advisory Committee on Ameri-
can Indian/Alaska Native Children Exposed to Violence: Ending
Violence so Children Can Thrive (U.S. Dep’t of Justice, 2014),
https://www.washingtonpost.com/r/2010-2019/WashingtonPost/
2014/11/17/National-Security/Graphics/Report_re5.pdf.
10
See, e.g., Major, et al., Youth Gangs in Indian Country,
OJJDP Juvenile Justice Bulletin, Mar. 2004, http://ncys.ksu.edu.
sa/sites/ncys.ksu.edu.sa/files/crime%2020.pdf.
11
See, e.g., Friese, et al., Drinking among Native American
and White Youths: The Role of Perceived Neighborhood and School
Environment, 14 J. Ethnicity in Substance Abuse 287 (2015).
12
See, e.g., Suicide Among American Indians/Alaska Natives,
Suicide Prevention Resource Center, https://sprc.org/scope/racial-
ethnic-disparities/american-indian-alaska-native-populations.
13
U.S. Dep’t of Health & Hum. Servs., Child Maltreatment
2019 at 21, https://www.acf.hhs.gov/sites/default/files/documents/
cb/cm2019.pdf.
 7

percent of children in foster care.14 They also tend to

spend far longer in foster care than children of other
races,15 meaning that they are more likely to “age out”
instead of finding permanent, loving adoptive homes.
Tribal governments typically blame these dispari-
ties on racism by child welfare agencies, see, e.g., Na-
tional Indian Child Welfare Association, Setting the
Record Straight: The Indian Child Welfare Act Fact
Sheet (Sept. 2015)16 (blaming “widespread non-compli-
ance” by state governments), but the more plausible
explanation is that Native children disproportionately
suffer from poverty, isolation, lack of access to services,
and other risk factors.17 As one expert observes, ICWA
“does little to alter the conditions that Congress held
responsible for the unwarranted breakup of Indian
families. . . . The Act’s emphasis is on removal and
placement, not prevention.” Barsh, The Indian Child

14
U.S. Dep’t of Health & Human Servs., The AFCARS Re-
port (June 23, 2020) at 2, https://www.acf.hhs.gov/sites/default/
files/documents/cb/afcarsreport27.pdf.
15
Barth, et al., Adoption of American Indian Children: Im-
plications for Implementing the Indian Child Welfare and Adop-
tion and Safe Families Acts, 24 Children & Youth Servs. R. 139
(2002).
16
https://www.nicwa.org/wp-content/uploads/2017/04/Setting-
the-Record-Straight-ICWA-Fact-Sheet.pdf.
17
Kastelic, Testimony before National Task Force on Ameri-
can Indian/Alaska Native Children Exposed to Violence in the
Home 6 (National Indian Child Welfare Association, 2013), https://
www.nicwa.org/wp-content/uploads/2016/11/NICWATestimony
TaskForceonAIANChildrenExposedtoViolence_Dec2013.pdf.
 8

Welfare Act of 1978: A Critical Analysis, 31 Hastings

L.J. 1287, 1334 (1980).
Professor Randall Kennedy is more frank: the
challenges faced by Native children amount to “a large,
complex social disaster that reflected and generated
poverty, anomie, drug dependency, child neglect, and
wanton violence,” he writes, but instead of confronting
these problems, Congress adopted ICWA, on the as-
sumption that the problems “could be solved merely by
the passage of a new law that would curtail the power
of state officials.” Kennedy, Interracial Intimacies 497
(2003).
Curtailing their power, however—and imposing
different, less-protective rules for cases involving “In-
dian children”—has actually resulted in greater harm
to these children, depriving them of security against
maltreatment or opportunities for safety and happi-
ness. Today, ICWA stands as a major obstacle to the
protection of these children’s futures.

B. ICWA’s restrictions and mandates pre-

vent states from protecting these chil-
dren from harm.
Contrary to the claims of Petitioners Cherokee Na-
tion, et al., ICWA is not a benefit to “Indian children,”
but a handicap to their safety and well-being. It bars
state officials from protecting these children from
abuse and neglect, restricts the availability of perma-
nent, loving adoptive homes for at-risk “Indian chil-
dren,” and in case after case has led to the injury and
 9

even the deaths of children who happen to fit ICWA’s

race-based or national origin-based profile.18

1. The beyond a reasonable doubt

standard
Consider the evidentiary standard for Termina-
tion of Parental Rights (TPR) cases. In Santosky v. Kra-
mer, 455 U.S. 745 (1982), this Court held that the due
process clause requires TPR cases to be decided under
the “clear and convincing evidence” standard, because
a mere “preponderance of evidence” standard was in-
sufficient to protect the rights of parents—and a “be-
yond a reasonable doubt” standard was insufficient to
protect the rights of children. Indeed, the reasonable
doubt standard “would erect an unreasonable barrier
to state efforts to free permanently neglected children
for adoption.” Id. at 769.

18
The Texas and Brackeen petitioners correctly observe that
ICWA’s definition of “Indian child” (25 U.S.C. § 1903(3)) is racial,
because it applies to children who, solely as a function of their
ancestry, are “eligible” for tribal membership and who have a “bi-
ological parent” who is a tribal member. Brackeen Pet. at 21;
Texas Pet. at 4. But even if not racial, ICWA’s definition of “Indian
child” creates a national origin-based distinction. See Espi-
noza v. Farah Mfg. Co., 414 U.S. 86, 95 (1973) (“national origin”
classification is one based on a person’s national “ancestry”);
Oyama v. California, 332 U.S. 633, 645 (1948) (statute created
national origin classification because it was triggered by the citi-
zenship or ancestry of a child’s parents). Obviously, national
origin classifications are just as suspect as racial classifications,
and are subject to the same strict scrutiny. Dawavendewa v. Salt
River Project Agric. Improvement & Power Dist., 154 F.3d 1117,
1120 (9th Cir. 1998).
 10

ICWA, however, imposes precisely that “reasona-

ble doubt” standard. 25 U.S.C. § 1912(f ). Indeed, it goes
further, and also requires testimony by expert wit-
nesses, id., who, according to federal regulations, must
be experts on tribal social and cultural standards. 25
C.F.R. § 23.122(a).
This is a greater burden than is required to send
a criminal defendant to death row.
Because TPR is often necessary to protect at-risk
children from abuse or to find them adoptive homes,
this provision of ICWA erects an unreasonable barrier
to state efforts to free permanently neglected Indian
children for adoption.
This Court and other courts have recognized that
ICWA deters otherwise willing adults from providing
adoptive homes for in-need “Indian children.” See
Adoptive Couple v. Baby Girl, 570 U.S. 637, 653–54
(2013) (ICWA’s mandates “unnecessarily place vulner-
able Indian children at a unique disadvantage in find-
ing a permanent and loving home”); In re Bridget R.,
49 Cal. Rptr. 2d 507, 527 (Cal. App. 1996) (ICWA re-
duces “the number and variety of adoptive homes that
are potentially available to an Indian child,” and in-
creases the risk that “an Indian child who has been
placed in an adoptive or potential adoptive home” will
be “taken from that home and placed with strangers.”).
But the reasonable doubt standard also harms
Indian children in non-adoption situations. TPR is of-
ten sought by Native parents themselves, who seek
to protect their children from abusive or neglectful
 11

ex-spouses, and who are barred from doing so by this

evidentiary standard. In S.S. v. Stephanie H., 388 P.3d
569 (Ariz. App. 2017), cert. denied sub nom. S.S. v. Col-
orado River Indian Tribes, 138 S. Ct. 380 (2017), a
tribal member father sought to terminate the rights of
his drug-addicted and neglectful ex-wife. Had the chil-
dren been Canadian or Mongolian, Arizona state law—
which uses the “clear and convincing” standard—
would have applied. See, e.g., Kent K. v. Bobby M., 110
P.3d 1013, 1017–18 ¶ 19 (Ariz. 2005). But because the
children were “Indian children,” ICWA’s more burden-
some requirements applied—and, thanks to the ex-
pense of obtaining expert witness testimony and the
extreme difficulty of satisfying the reasonable doubt
standard, the father was forbidden to take steps neces-
sary to protect his children. See further Section II be-
low.

2. The active efforts requirement

ICWA also forbids either state or private parties
from rescuing mistreated “Indian children” from abu-
sive households unless that state or private party
first makes “active efforts” to “prevent the breakup
of the Indian family.” 25 U.S.C. § 1912(d).
In cases involving non-“Indian children,” the laws
of all states, as well as the federal Adoption and Safe
Families Act, Pub. Law 105-89, § 111 Stat. 2115 (1997),
require only “reasonable efforts” to prevent family
breakup, and this requirement is excused in cases of
“aggravated circumstances” such as sexual abuse or
 12

drug addiction by the parent, or the commission of

murder or other specified felonies, see 42 U.S.C.
§ 671(a)(15)(D).
ICWA’s “active efforts” requirement, however, ex-
ceeds the “reasonable efforts” requirement,19 and is not
excused by the presence of aggravated circumstances.
See, e.g., People ex rel. J.S.B., Jr., 691 N.W.2d 611, 618
¶ 20 (S.D. 2005); 81 Fed. Reg. 38814 (federal regulation
stating that active efforts are not excused in such cir-
cumstances).
This means that in cases where state agencies can
prove that the parent of an “Indian child” is abusive,
they nonetheless must return that child to the abusive
home, to be abused again. No such requirement would
apply if the child were white, Asian, black, Hispanic, etc.
Unsurprisingly, the consequences are often tragic.20
In In re Shayla H., 846 N.W.2d 668 (Neb. App. 2014),

19
ICWA does not define “active efforts,” but state courts say
it requires something above and beyond reasonable efforts—for
example, it requires “the bizarre undertaking of ‘stimulat[ing]’ a
biological father’s ‘desire to be a parent.’ ” Adoptive Couple, 570
U.S. at 653.
20
It is extraordinarily difficult to determine the exact scale
of harms inflicted by ICWA because child protection agencies and
tribal governments typically refuse to disclose information about
such cases, even where that information would not compromise
anyone’s confidentiality. Foster parents are usually afraid to
speak out regarding abuses they witness, out of fear that they will
lose their foster care licenses, and state child protection officers
fear losing their jobs. Tribal governments often punish whistle-
blowers, cf. Riley, The New Trail of Tears 154–55 (2016), and state
juvenile court judges liberally employ gag rules to penalize
 13

aff ’d 855 N.W.2d 774 (Neb. 2014), state child protection

officers took three minor girls from the custody of their
father, due to sexual abuse and neglect. The trial court
concluded that this was in their best interests. But the
Court of Appeals reversed, because although the state
had satisfied the reasonable efforts requirement, the
children were “Indian children,” and the state had not
satisfied the active efforts burden. The state therefore
sent the girls back to the abusive household—where
they were subjected to more molestation. Later, the
trial court again removed them from the family, noting
that they had “experienced lifetimes of trauma,” due to
the “repeated lewd and lascivious behavior” of the abu-
sive parents—trauma they would have been spared,
had they been of another race. In re Interest of Shayla
H., et al., Doc. JV13 (Lancaster County Juvenile Court,
May 1, 2015) at 3, 18.
ICWA’s active efforts requirement has often
proven fatal to children. The Oklahoma Department
of Human Services was well aware that five-year-old
Declan Stewart was being physically abused by his
mother’s boyfriend. Department officials described his

anyone who shares such information with the public, or even who
take legal positions contrary to tribal governments.
For example, in In re C.J. Jr., 2019-Ohio-1863, the guardian
ad litem objected to the child being sent from Ohio to Arizona to
live with strangers he had never met, as the tribe demanded
under ICWA. Because the guardian ad litem argued that ICWA
was unconstitutional, the juvenile court judge removed him from
the case—a brazen violation of the First Amendment. See In re
C.J. Jr., 15JU-232 (Ct. Common Pl. Franklin Co., June 25, 2018)
at 2 (removing G.A.L. because he “does not support ICWA.”).
 14

condition as “shocking,” and in 2006, removed him from

his mother’s custody after he arrived at the emergency
room with signs of having been beaten. Had Declan
been Chinese or Jewish, the state could have placed
him in safe custody. But because he was biologically el-
igible for membership in the Cherokee tribe, ICWA ap-
plied—and its “active efforts” requirement required
the Department to return Declan to his mother’s cus-
tody. A year later, her boyfriend raped him and beat
him to death. See Clay & Ellis, U.S. Law Pushed Boy
Home Before He Died, The Oklahoman, Oct. 4, 2007.21
Officials in Great Falls, Montana, knew five-year-
old Antonio Renova was being brutalized by his biolog-
ical parents. They placed him in foster care with a cou-
ple who cared for him for more than four years, and
hoped to adopt him. But because he was biologically
eligible for membership in the Crow tribe, he was
deemed an “Indian child,” and the tribal court judge
said “I’ll be damned if I’ll . . . let a white couple adopt
a Crow child.” Murray, Foster Family Who Raised Slain
5-year-old Explains How System Repeatedly Failed
Him, Great Falls Tribune, Nov. 22, 2019.22 The state
therefore returned him to his abusive parents in Feb-
ruary 2019. Had Antonio been Italian or Peruvian, the
state could have spared his life. Instead, because he

21
https://www.oklahoman.com/article/3140271/us-law-pushed-
boy-home-before-he-diedbrspan-classhl2tribal-statute-advocates-
reunifying-split-familiesspan?
22
https://www.greatfallstribune.com/story/news/2019/11/22/
foster-family-who-raised-slain-child-explains-how-system-failed-
him/4275866002/.
 15

was subject to ICWA’s mandates, he was beaten to

death seven months later by adults the state knew
were hurting him.
Arizona Department of Child Services officers had
been investigating one-year-old Josiah Gishie’s mother
for half a decade due to her mistreatment of her other
children, but its efforts to help her put her life on track
were unsuccessful. They placed Josiah in foster care,
and if he had been Swiss or Nigerian, they might have
been able to save him. But—as the Department itself
said in a subsequent press release—his mother was
“affiliated with an Arizona Tribe, [meaning] her cases
fell under [ICWA]. ICWA cases contain jurisdictional
and legal issues that influence how the Department in-
vestigates and provides services. . . . There is a higher
burden of proof for the government to intervene in an
ICWA case.” Arizona Department of Child Safety,
Statement on the Death of One-Year-Old Josiah Gishie,
Oct. 12, 2018.23 Consequently, the Department re-
turned Josiah to her custody. A month later, she left
him alone in the apartment and went to work. He was
dead when she returned. Koehle, DCS Claims ‘Juris-
dictional, Legal Issues’ in Phoenix Toddler’s Death
Case, ABC15.com, Oct. 15, 2018.24
ICWA stands as a barrier to protecting at-risk
children who are deemed “Indian” based solely on their

23
https://dcs.az.gov/sites/default/files/StatementFatality/Fatality
%20Statement%20Josiah%20Gishie.pdf.
24
https://www.abc15.com/news/region-phoenix-metro/central-
phoenix/dcs-there-were-jurisdictional-legal-issues-in-boys-case.
 16

biological ancestry. This is a matter of urgent concern

for countless children and the parents who seek to pro-
tect their best interests.

3. The best interests of the Indian child

The Tribal Petitioners claim that ICWA repre-
sents “the ‘gold standard’ for child-welfare practices.”
Tribes’ Pet. at 2. This is a false statement, and it is im-
portant to explain why.
The slogan “gold standard” first appeared in an
amicus brief filed in Adoptive Couple v. Baby Girl by
the Casey Family Programs, et al. (2013 WL 1279468).
That brief made the unremarkable assertion that the
“gold standard” for child welfare practice is “that active
efforts be made to support and develop the bonds be-
tween a child and her fit birth parents.” Id. at *4 (em-
phasis added). But nobody disputes that the bonds
between children and fit parents should be supported.
Rather, the question is, what to do about unfit parents,
or about situations such as this case, in which Native
parents agree to the adoption of their children by fit
adoptive parents. Mere recitation of this slogan does
not make it so—and in fact ICWA represents the oppo-
site of the “gold standard” in important respects.
The true gold standard for child welfare law is the
universally recognized “best interests” standard. The
child’s best interest has been the law’s primary concern
in child protection cases since long before Justice
Cardozo first used the phrase “best interests of the
child” in Finlay v. Finlay, 148 N.E. 624, 626 (N.Y. App.
 17

1925). See 2 Story, Commentaries on Equity Jurispru-

dence as Administered in England and America 675–
77 (13th ed. 1886) (tracing the origins of the best inter-
ests standard). States generally characterize the best
interest of the child as the “touchstone”25 or the “linch-
pin”26 of child welfare law, or the “overriding”27 or “fore-
most” consideration in child welfare cases.28
The best interests standard is an all-things-
considered analysis of each individual child’s specific
needs in his or her particular circumstances. It does
not rely on legal presumptions. Indeed, Stanley v. Il-
linois, 405 U.S. 645, 656–57 (1972), rejected reliance
on presumptions in best interests analysis when it
said that doing so “risks running roughshod over the
important interests of both parent and child” if that
presumption “forecloses the determinative issues of
competence and care.” Reliance on presumptions
therefore violates the due process rights of parents
and children. Accord, In re Kelsey S., 1 Cal.4th 816, 848
(1992).
Yet ICWA overrides the best interests test and
substitutes a different test for “Indian children.” Cali-
fornia courts have said it establishes a separate but
equal test: while in cases involving children of other
racial or national origins, the child’s best interests are

25
In re Marriage of Wellman, 164 Cal. Rptr. 148, 151 (Cal.
App. 1980).
26
In re Robert L., 24 Cal. Rptr. 2d 654, 660 (Cal. App. 1993).
27
In re L.M., 572 S.W.3d 823, 837 (Tex. App. 2019).
28
King v. Lyons, 457 S.W.3d 122, 131 (Tex. App. 2014).
 18

“the state’s top priority,” In re Marriage of Williams, 58

Cal. Rptr. 3d 877, 890 (Cal. App. 2007) (citation omit-
ted), for cases involving Indian children, the child’s
best interests are only “one of the constellation of fac-
tors” relevant to the court’s determination. In re Alex-
andria P., 204 Cal. Rptr. 3d 617, 634 (Cal. App. 2016),
cert. denied, 137 S. Ct. 713 (2017). Texas courts have
gone further, holding that there is an “Anglo” best in-
terests standard, and a separate but equal “Indian”
best interests standard. Yavapai-Apache Tribe v.
Mejia, 906 S.W.2d 152, 168 (Tex. App. 1995).
Other authorities have asserted that ICWA cre-
ates not a separate-but-equal rule regarding best in-
terests, but that it establishes per se presumptions
regarding “Indian children.” For instance, Colorado
courts have declared that ICWA “reflects the presump-
tion that the protection of an Indian child’s relation-
ship with the tribe serves the child’s best interests,”
People in Interest of Z.C., 487 P.3d 1044, 1047 ¶ 44
(Colo. App. 2019), and Montana courts have held that
“while the best interests of the child is an appropriate
and significant factor in custody cases under state
law, it is improper” in ICWA cases because “ICWA ex-
presses the presumption that it is in an Indian child’s
best interests to be placed in conformance with
[ICWA’s] preferences,” even if the child’s individual
best interests lie elsewhere. In re C.H., 997 P.2d 776,
782 ¶ 22 (Mont. 2000) (emphasis added).29

29
The Bureau of Indian Affairs (BIA) has agreed, asserting
that “an independent consideration of the best interest of the
 19

But application of such a presumption obliterates

the inherently individualized nature of the best inter-
ests analysis. Each “Indian child,” no less than his or
her peers of other ethnicities, deserves to have his or
her specific best interests adjudicated, free of any pre-
sumption that “forecloses the determinative issues.”
Stanley, 405 U.S. at 657.30
Most importantly, states have a legal and moral
obligation to support and protect the best interests of
all minors within their jurisdiction, without respect to
their biological ancestry. By overriding their authority
to do so and imposing a federally-mandated presump-
tion that classifies children based on their racial or
national origin—and purports to declare per se what
is best for all “Indian children,” regardless of their
particular circumstances—ICWA deprives states of
the ability to exercise their parens patriae responsi-
bilities. That is worse than merely depriving them of
“the power to create and enforce a legal code.” Alfred L.
Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S.

Indian child” is improper when applying ICWA “because [ICWA’s

statutory adoption and foster care] preferences reflect the best in-
terests of an Indian child in light of the purposes of the Act.” 80
Fed. Reg. 10146-02, 10158 § F.4(c)(3) (Feb. 25, 2015).
30
The BIA recently embraced the more modest position that
ICWA does allow consideration of a child’s particular best inter-
ests in “limited” and “exception[al]” circumstances. 81 Fed. Reg.
38847. While this innovation is welcome, state courts have con-
cluded otherwise, and this Court should still grant certiorari to
make clear that that the statute does indeed allow consideration
of each child’s specific best interests.
 20

592, 601 (1982). This is an intrusion onto a quintessen-

tial state responsibility in a way that prevents states
from protecting their most vulnerable citizens.31

II. ICWA is depriving Native parents of the

ability to protect their children.
As mentioned in Section I.B.1 above, ICWA in-
fringes on the right of Native parents to act in the best
interests of their children—a right seven justices of
this Court characterized as “fundamental” in Troxel v.
Granville, 530 U.S. 57, 65 (2000) (plurality opinion); see
also id. at 80 (Thomas, J., concurring); id. at 87 (Stevens,
J., dissenting); id. at 78–79 (Souter, J., concurring).
For one thing, ICWA’s reasonable doubt + expert
witness requirement effectively bars Native parents
from terminating the rights of abusive or neglectful ex-
spouses. Thus, in In re J.P.C., CV-17-0298-PR (Ariz.
Feb. 13, 2018), a Tohono O’odham mother who lived in
Tucson, but not on the Tohono O’odham reservation,
sought to terminate the rights of her abusive, repeat-
criminal ex-husband, so her new husband could legally
adopt her son. Had the child been German or Paki-
stani, Arizona state law would again have applied—
which employs the clear and convincing standard.
A.R.S. § 8–537. And if the child had lived on
31
It bears emphasizing—because it is often forgotten in
ICWA cases—that “Indian children” are not foreigners. They are
citizens of the United States and of the state where they reside. 8
U.S.C. § 1401(b); U.S. Const. amend. XIV. Thus there is no anal-
ogy between ICWA and any international treaty respecting the
adoption of foreign nationals.
 21

reservation, the tribe’s law would have applied—which

in this respect was identical to Arizona law, using the
same clear and convincing standard. Tohono O’odham
Code tit. 3, ch. 1, art. 5, § 1517(F).32 But because the
family lived off-reservation, and the child was an “In-
dian child” under ICWA, the federal “beyond a reason-
able doubt” standard applied instead—meaning the
mother was barred from protecting her child’s best in-
terests. See further Sandefur, Recent Developments in
Indian Child Welfare Act Litigation: Moving Toward
Equal Protection?, 23 Tex. Rev. L. & Pol. 425, 447–48
(2019).
Amazingly, ICWA even blocks Native parents from
protecting their children in cases where the abusive
spouse is not Native. In In re T.A.W., 383 P.3d 492
(Wash. 2016), a tribal member mother sought to ter-
minate the rights of her violent ex-husband who
was non-Native—so that her new husband, who was
Native, could adopt her son legally—but the Wash-
ington Supreme Court refused, on the grounds that
ICWA obliged her to first “prove that active efforts
were undertaken to remedy [the non-Native father’s]
parental deficiencies.” Id. at 494 ¶ 1. In short, ICWA
not only failed to prevent the breakup of the Indian
family but barred the formation of this Indian family.
Similarly, when Native parents consent to the
adoption of their child—as in the Brackeens’ case—
that decision is one of the fundamental rights of par-
ents as described in Troxel. The Troxel Court, in fact,

32
https://www.tolc-nsn.org/docs/Title3Ch1.pdf.
 22

found the Washington visitation statute unconstitu-

tional because states may not elevate the interests of
third parties over the parents’ “fundamental right to
make decisions concerning the care, custody, and con-
trol” of their children. 530 U.S. at 72. Yet as this Court
acknowledged in Mississippi Band of Choctaw Indi-
ans v. Holyfield, 490 U.S. 30 (1989)—ICWA gives tribal
governments “ ‘an interest in the child which is distinct
from but on a parity with the interest of the parents.’ ”
Id. at 52–53 (quoting In re Adoption of Halloway, 732
P.2d 962, 969–70 (Utah 1986) (emphasis added)).
Troxel made clear that the government may not,
consistent with the fundamental rights analysis, give
any third party an interest in a child on a parity with
the interest of the parents. But because ICWA does
this, tribal governments are allowed to effectively veto
the decisions of Native parents to “make decisions con-
cerning the care, custody, and control” of their children.
530 U.S. at 72. That, in fact, is what happened here:
there is no dispute that A.L.M.’s parents, for example,
voluntarily terminated parental rights and consented
to adoption by the Brackeens—yet ICWA empowered
tribal governments to veto the choices of A.L.M.’s par-
ents in precisely the manner found unconstitutional in
Troxel.

III. ICWA deprives at-risk “Indian children” of

the opportunity to find safe, permanent,
loving homes.
ICWA’s foster care and adoption placement man-
dates (25 U.S.C. § 1915) and the power of tribes to
 23

invalidate state court decisions in certain circum-

stances (id. § 1914), create a powerful disincentive
against adults opening their homes and hearts to
“Indian children.” Knowing they will almost certainly
be barred from adopting a child and may not be able to
take steps necessary to protect their safety, otherwise
willing adults are likely to decline the opportunity
to care for at-risk “Indian children.” See Stuart, Na-
tive American Foster Children Suffer Under a Law
Originally Meant to Help Them, Phoenix New Times,
Sep. 7, 2016.33
Section 1915(b) requires that “Indian children” be
placed with “Indian” foster families. But there is a
drastic shortage of Indian foster families. See Krol, In-
side the Native American Foster Care Crisis Tearing
Families Apart, Vice.com, Feb. 7. 2018.34 In California’s
San Francisco Bay Area, for example, home to 7.7 mil-
lion people, there are approximately 14 licensed “In-
dian” foster homes. Begay & Wilczynski, Barriers to
Recruiting Native American Foster Homes in Urban
Areas 2 (unpublished Masters thesis, CSU San Ber-
nardino, 2018).35 In Los Angeles County, home to 10
million people, there is only one. Heimpel, L.A.’s One

33
https://www.phoenixnewtimes.com/news/native-american-
foster-children-suffer-under-a-law-originally-meant-to-help-them-
8621832.
34
https://www.vice.com/en/article/a34g8j/inside-the-native-
american-foster-care-crisis-tearing-families-apart.
35
https://scholarworks.lib.csusb.edu/cgi/viewcontent.cgi?article=
1776&context=etd.
 24

and Only Native American Foster Mom, The Imprint,

June 14, 2016.36
This means “Indian children” are frequently
placed with non-“Indian” foster families, and because
this is not ICWA compliant, they can be, and fre-
quently are, removed from those families and placed
with another, and then another, until they “age out” of
the system. Bakeis, The Indian Child Welfare Act of
1978: Violating Personal Rights for the Sake of the
Tribe, 10 Notre Dame J.L. Ethics & Pub. Pol’y 543, 569
(1996). Although Native children are only one percent
of the population, they account for three percent of
children who age out of foster care. Pharris, et al.,
American Indian and Alaska Native Youth Aging out
of Foster Care: A Life Course Analysis, Presentation to
Society for Social Work and Research, Jan. 16, 2020.37
But aging out of foster care without forming a perma-
nent adoptive family bond is highly correlated with
risks that diminish a child’s quality of life. Margolin,
Every Adolescent Deserves A Parent, 40 Cap. U. L. Rev.
417, 418–22 (2012).
Worse, the fact that “Indian children” can be ab-
ruptly and arbitrarily removed from their care discour-
ages adults who would be willing and able to do so from
aiding these children. A 2016 story in the Phoenix New
Times described this circumstance well. Stuart, supra.

36
https://imprintnews.org/news-2/l-a-s-one-native-american-
foster-mom/18823.
37
https://sswr.confex.com/sswr/2020/webprogram/Paper40463.
html.
 25

It profiled a foster mother, “Jennifer,” who took an 18-

month-old “Indian child” into her home when his par-
ents were unable to care for him. Had he been Persian
or Maori, she would have been able to provide him a
long-term home—but because his case was governed
by ICWA, placement with Jennifer was deemed non-
compliant. Thus, after a year and a half, when she sug-
gested adoption, the tribe and the state immediately
removed him from her care. For at least four more
years, he languished in foster homes, with Jennifer for-
bidden to contact him. “It’s as if he died,” she told a re-
porter, “but worse.” Asked if she would again consider
providing foster care for a Native child, her answer was
clear: “ ‘No,’ she said. ‘Nope. Nope. Nope.’ ”
The damage done to the children is obviously
greater. “The importance of early infant attachment
cannot be overstated. It is at the heart of healthy child
development and lays the foundation for relating in-
timately with others, including spouses and chil-
dren.” Colin, Infant Attachment: What We Know Now
at ii (U.S. Dep’t of Health & Human Servs., 1991).38
ICWA systematically deprives “Indian children” of
this stability.
Consider In re Alexandria P., supra. It involved a
six-year-old girl called Lexi, who lived with a California
foster family for four of those years. Although she had
no political, social, cultural, linguistic, religious, or other

38
https://aspe.hhs.gov/sites/default/files/private/pdf/73816/
inatrpt.pdf.
 26

relationship with the Choctaw tribe, her great-great-

great-great-great-great-great grandfather had been a
full-blood member of the tribe, and because the tribe
has no minimum blood quantum requirement, that
rendered her eligible for membership—and conse-
quently made her an “Indian child.” Therefore, tribal
officials demanded that she be removed from the foster
parents she called “Mommy” and “Daddy,” and sent
to live in Oklahoma with her step-second cousin.
State courts obliged. The trauma inflicted on Lexi
was certainly incalculable. Sandefur, Escaping the
ICWA Penalty Box: In Defense of Equal Protection for
Indian Children, 37 Child. Legal Rts. J. 1, 1–2, 52–56
(2017).
No wonder, then, that ICWA “put[s] certain vul-
nerable children at a great disadvantage.” Adoptive
Couple, 570 U.S. at 655. Adoption of Native children
has decreased as a consequence of ICWA, see Mac-
Eachron, et al., The Effectiveness of the Indian Child
Welfare Act of 1978, 70 Soc. Serv. R. 451 (1996)—but
not because of a decrease in need. It’s because of the
legal barriers ICWA erects.
There are adults willing and ready to care for
these children—but federal law forbids them from do-
ing so because their skin is the wrong color.
---------------------------------♦---------------------------------

CONCLUSION
These are probably the most important petitions
this Court will receive this term. On them depends the
 27

safety and welfare of countless American children of

Native ancestry who—due to ICWA—are stripped of
the legal protections their non-Indian peers receive.
The petitions should be granted.
Respectfully submitted,
ILYA SHAPIRO TIMOTHY SANDEFUR*
TREVOR BURRUS SCHARF-NORTON CENTER FOR
CATO INSTITUTE CONSTITUTIONAL LITIGATION
1000 Mass. Ave. NW AT THE GOLDWATER INSTITUTE
Washington, DC 20001 500 E. Coronado Rd.
(202) 842-0200 Phoenix, AZ 85004
[email protected] (602) 462-5000
[email protected] litigation@
goldwaterinstitute.org
ROBERT HENNEKE
TEXAS PUBLIC *Counsel of Record
POLICY FOUNDATION
901 Congress Ave.
Austin, TX 78701
(512) 472-2700
[email protected]