Caitlyn Lindstrom is a first-year student at American University, Washington College of Law. She graduated from the University of Richmond summa cum laude, where she majored in Political Science and Leadership Studies.

On November 9, 2022, the Supreme Court heard oral arguments for Haaland v. Brackeen[1], a case concerning the constitutionality of the Indian Child Welfare Act (ICWA). Brackeen, representing the merged parties opposed to the Act, concluded before the court a central claim that American Indian[2] children are “subjected to a different legal standard” based on a status defined by their ancestry, which they cannot control.[3] As such, Brackeen contended that the ICWA is unconstitutional because it creates a racial classification that violates the Equal Protection Clause.[4] In contrast, the opposing party asserted that the ICWA is acting upon Indian tribes’ political status – not racial status – with the United States.[5] The justices should decide the ICWA remains constitutional because Indian tribes maintain the political relationship with the federal government and Indian children hold a political status under their tribal membership.

Congress passed the ICWA in 1978 after finding that Indian children were removed from their homes at a disproportionately higher rate than non-Indian children.[6] Around 25-35 percent of Indian children were removed from their homes and 85 percent of these children were placed outside of both their families and communities, despite having relatives willing and able to care for them.[7] Congress regarded these severances in Indian families as unwarranted and called out states for failing to “recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” To protect the rights of Indian parents or guardians, Congress established placements for Indian children following the preferences of: (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.[9] The ICWA only applies when a child is an Indian child, which Congress defined as an minor who holds citizenship in a federally recognized tribe or who retains the ability to obtain citizenship through a parent. Since tribal communities receive preference over non-Indian individuals, the reach of tribal jurisdiction is more broad than federal jurisdiction, as it reaches children who are tribal members and are eligible for membership status.

An integral question for the court is whether the ICWA’s “Indian child” definition is a political classification, rather than a race-based classification. Under the Equal Protection Clause, political classifications are subject to rational basis review, only requiring a rational justification for the statute; however, race-based classifications are subject to strict scrutiny review, requiring a more in-depth analysis of whether the category is narrowly tailored to serve a compelling government interest.[11]

The ICWA’s statutory text and legislative history support the interpretation of “Indian child” as a political classification. The Act states its purpose is to promote the security and the preservation of unique values for Indian culture within Indian tribes and families, as well as for Indian children in foster or adoptive homes.[12] “Indian child” does not define a hardline racial or ancestral limitation, allowing tribal nations to define if a child meets eligibility.[13] Indian tribes reserve the right to intervene with an Indian child for the interest of protecting tribal sovereignty and cultural connect, indicating that Congress expressly intended for the Act to affect the political relationship between the United States and tribal nations.[14] Moreover, in considering whether the ICWA posed a Fifth Amendment Equal Protection issue, legislators and the Department of Justice dismissed the potential claim because the definition of “Indian child” was exhaustive and political in nature.[15] Thus, there is a strong argument that Congress passed the ICWA with intent of deferring to Indian nations to maintain respect for the political relationship while refraining from regulating along race-based classifications.

Although some argue the ICWA would still prevail under a strict scrutiny review,[16] others argue that the ICWA does not have a connection to tribal government at all, which further reinforces the racial classification and lack of compelling government interest.[17] If the ICWA is repealed, there is a real threat that the number of Indian children removed from their families and communities will increase, as there is no check on state governments.[18] Beyond the issue of Indian children and child protective services, if the act is found unconstitutional under a violation of Equal Protection, any law affecting federal Indian law may also be at risk, creating great uncertainty for Indian Nations and people.[19] The future of Tribal sovereignty and Indian law may be viewed primarily as a benefit to a particular racial group, which effectively threatens Indian tribes political status and the legal trust relationship between tribes and the federal government originally established from treaty guarantees.


[1] See Haaland v. Brackeen, 142 S. Ct. 1205 (2022).

[2] This post will use the term “Indian” to be consistent with the statutory language of the ICWA.

[3] Transcript of Oral Argument at 208, Haaland v. Brackeen, 142 S. Ct. 1205 (2022) (No. 21-376).

[4] See id. (arguing that a racial classification creates different standards based on status which cannot be controlled).

[5] Id. at 26.

[6] 25 U.S.C.A. § 1901 (Westlaw through Pub. L. No. 95-608).

[7] See Emily Hudson, Comment, The Constitutionality of The Indian Child Welfare Act, 47 Ohio N. Univ. L. Rev. 359, 364 (2021) (finding that many social workers determined the norm of communal caretaking in Indian communities by extended family members was considered neglect by many social workers, thus increasing the removal rates of Indian children).

[8] 25 U.S.C.A. § 1901 (West 1978).

[9] 25 U.S.C.A. § 1915 (West 1978).

[10] 25 U.S.C.A. § 1903 (West 1978).

[11] U.S. Const. amend. XIV, § 1; Loving v. Virginia, 338 U.S. 1, 11 (1966) (holding that racial classifications be subjected to the most rigid scrutiny which must be necessary to the accomplishment of a permissible state objective).

[12] See 25 U.S.C.A. § 1902 (West 1978).

[13] Maci Burke, Comment, A Call to Congress: A Constitutional Indian Child Welfare Act is Not a Flawless Indian Child Welfare Act, 39 Minn. J. of L. & Ineq. 191, 206 (2021) (arguing that a tribal nation’s ability to define their own people recognizes tribal sovereignty and reflects the political nature).

[14] Id.

[15] See H.R. Rep. No. 95-1386, at 39 (1978) (expressing beliefs that racial classifications are suspect under the Fifth Amendment and the Assistant Attorney General saw no compelling reason which might justify its use in these circumstances).

[16] Lucy Dempsey, Comment, Equity Over Equality: Equal Protection and the Indian Child Welfare Act, 77 Wash. & Lee L. R. Online 411, 461 (2021) (arguing that the government has a compelling interest to protect and preserve Indian tribes through the general trust relationship between the federal government and tribes).

[17] Transcript of Oral Argument, supra note 3, at 207-08 (arguing that there will not be an effect on tribes to govern themselves regardless of whether an Indian child lives with an Indian or non-Indian family).

[18] Hudson, supra note 7, at 392.

[19] Id.