SCOTUS Ponders Indian Tribes, Foreign Nations, Race-Based Classifications, and Vegans

 by Michael C. Dorf

Yesterday the Supreme Court heard oral argument in Haaland v. Brackeen and various consolidated cases. They collectively present constitutional challenges to the Indian Child Welfare Act (ICWA), a federal statute that in various respects supersedes state family law regarding foster care placements and adoptions of children who are members of federally recognized Indian tribes. Three main constitutional issues are presented: whether (1) ICWA falls within the scope of Congress's so-called plenary power over relations with and regarding Indian tribes; (2) whether the obligations that ICWA places on state and local child welfare agencies constitute unconstitutional commandeering of the state; and (3) whether ICWA obligates state courts (and/or other state actors) to use a suspect racial classification, thus triggering (and failing) strict scrutiny. In addition, there are threshold questions of standing, especially with respect to the state of Texas, which is the petitioner in one of the consolidated cases.

In today's essay, I'll focus chiefly on the third question, and in particular on an issue that seemed especially important to Justices Kavanaugh and Barrett during the oral argument: what to make of the "third preference" of a key provision of ICWAA declaratory provision of ICWA states that in addition to protecting the integrity of Indian tribes, ICWA's substantive requirements aim "to protect the best interests of Indian children." Nonetheless, no one disputes that where ICWA applies, it partially displaces the "best interests of the child" tests that state family courts routinely apply in cases that do not implicate ICWA. The key provision states the following adoption placement preferences:

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.

Justices Kavanaugh, Barrett, and others were especially concerned about preference (3) because it seems inconsistent with the argument advanced by the federal government (through Deputy SG Ed Kneedler) and tribal parties (through attorney Ian Gershengorn) that ICWA employs a permissible political classification, not an impermissible racial classification. After all, while membership in a Sioux tribe can be analogized to citizenship in a foreign country, the third preference treats membership in any Indian tribe as the basis for an adoption preference with respect to any other Indian tribe rather than to non-Indian adoptive parents. The analogy to foreign sovereigns seems to break down if adoptive parents who are members of, say, the Navajo Nation in Arizona are given priority over a non-Indian couple in Florida with respect to the adoption of a child who is a member of the Seminole Tribe of Florida.

I'll offer my take on the third-preference issue momentarily, but first I should say that I don't have a definitive prediction with respect to the case's ultimate disposition. As one might expect, the three Democratic appointees seemed unsympathetic to the constitutional challenges. Justice Gorsuch--who has championed robust Indian sovereignty in other cases--also seems likely to vote against the challenges, although his questions focused mostly on the federal power issue rather than the equal protection challenge. But even assuming that Justice Gorsuch aligns with the Democratic appointees, it is not clear whether a fifth vote can be found to sustain ICWA.

Turning from prognosis to analysis, the underlying problem is that, so far as the Constitution is concerned, Indian tribal status can, depending on the circumstances, be a permissible political classification (as recognized by SCOTUS in Morton v. Mancari) or a presumptively unconstitutional racial classification (as recognized by SCOTUS in Rice v. Cayetano, which accepted arguendo that native Hawaiian communities have the same status as Indian tribes but nonetheless invalidated a classification based on native Hawaiian status). Insofar as the third preference treats Indian tribes as (in Justice Alito's word) fungible, it suggests that ICWA adopts a racial classification.

Messrs. Kneedler and Gershengorn pushed back by seeking to marginalize the third preference. They argued that no one has offered any instances in which ICWA's third preference has been applied in the way suggested by my Navajo/Seminole example. Rather, Mr. Gershengorn explained that the third preference could come into play with respect to a child who is a member of a tribe that shares a reservation with another tribe, as occurs in Alaska. Granting an adoption preference to parents of Tribe X who live on the reservation of Tribe Y when the child is a member of Tribe Y would indeed be a means of respecting tribal sovereignty and not simply treating Indian status as a racial classification. 

Further, the lawyers defending ICWA noted that the cases currently before the Court challenge ICWA on its face, so that even if some as-of-yet hypothetical application of the third preference might be characterized as an impermissible racial preference, that should not invalidate the statute. (I detected a slight difference between Messrs. Kneedler and Gershengorn in their response to a version of the Navajo/Seminole hypothetical case--whether to say that would be an impermissible racial classification or a political classification that fails even the permissive rationality test under Mancari--but this fine distinction is unlikely to play any role in the Court's disposition of the case.) And even if the third preference is impermissibly race-based, Mr. Gershengorn said it's severable from the other preferences.

But wait, you say. What has any of that to do with vegans (as teased in the title of today's post)? I'm glad you asked. Here's what Mr. Gershengorn said in support of his severability point, even assuming arguendo that the third preference is unconstitutionally race-based:

If I say to a group of friends with whom I'm going out to dinner that I would like Italian food, Chinese food, or to go to a steak joint, and it turns out there's a vegan in the group, then I can't have my preference for the steak joint satisfied, but the first two preferences remain.

(I've italicized the language rather than put it in quotation marks because I've edited the transcript to make it more readable, but I haven't changed the substance.)

Is that right? As a preliminary matter, I might quibble. A steakhouse could have plentiful vegan options (as noted here in VegOut magazine), whereas an Italian or Chinese restaurant might not. So let's modify the hypothetical so that the choice is between three restaurants: A and B have good vegan options; C does not. Now does the severability point go through?

Maybe, but I think that the dinner example doesn't fully address the best version of the argument against ICWA utilizing the third preference. That argument (as I would construct it were I arguing the case for one of the petitioners) is not that the third preference is invalid and inseverable from the rest of ICWA. That's the sort of argument that the challengers to the Affordable Care Act (ACA) made to the whole of the Act after the tax applied to covered persons who didn't purchase health insurance was reduced to $0. It was accepted by Justice Alito, joined by Justice Gorsuch, in dissent in California v. Texas, but that was because of the way in which they saw the tax provision and the individual mandate relative to other provisions of the ACA. No Justice has ever said that inseverability arguments always prevail.

So, if the petitioners are not challenging the third preference on inseverability grounds, and it's not at issue in the cases before the Court, what is its relevance? The best argument for the petitioners is that the third preference reveals Congress's true intentions. I can explain with my own analogy.

Suppose a law faculty is trying to decide whether to hire entry-level scholar X, who has written three law review articles. X specializes in an area (tax law, let's say) with respect to which the current members of the appointments committee have no special expertise, but they think all three articles show promise. Before proceeding further with X's candidacy, they share the file with a colleague who does specialize in tax law. Initially, she has time to read only one of the articles. She chooses Article 3 because the title intrigues her. Upon reading Article 3, she concludes that it is not very good. It's unoriginal and makes some technical mistakes. She reports as much back to the committee, with the caveat that perhaps Articles 1 and 2 are better. At this point, it would be prudent for the committee either to set aside X's candidacy or to ask the same or another tax colleague to read Articles 1 and 2. Why? Because the conclusion that Article 3 is no good when examined by an expert undercuts the non-expert opinion of the committee not only with respect to Article 3 but with respect to Articles 1 and 2 as well.

Likewise, the petitioners might argue with respect to ICWA's third preference. If one concludes that it is a racial rather than a political preference, that would invalidate the third preference, but it might also call into question the first two preferences. A Justice who might read the first two preferences as otherwise permissibly political could think that, in light of Congress's use of Indian status as a racial classification in the third preference, Congress has disguised a racial classification as a political classification in the first two preferences.

As I said, I think the foregoing is the best version of the argument the petitioners could be advancing with respect to the third preference, but I don't know how persuasive it is--even assuming that one concludes the third preference is race-based. My uncertainty arises out of the dual nature of Indian status.

In a typical equal protection case alleging race-based discrimination, it is clear whether the challenged law employs a racial classification. If it does, strict scrutiny applies. If it does not, then in order to trigger strict scrutiny, the law must have a disparate racial impact and must have been adopted because of (and not merely in spite of) that impact. Disparate impact cases, but not facially race-based classification cases, turn on legislative intent.

No one questions that ICWA expressly uses Indian status as a classification. There would be no occasion to inquire into congressional intent if Indian status were race-based. But because Indian status can be permissibly political rather than presumptively impermissibly race-based, there is a further question of how it's being used. Congressional intent could bear on that question, but it is not clear from the Court's cases that it does. For what it's worth, however, I think it probably should. Even then, though, the petitioners would have an uphill battle to show that: (a) the third preference was intended racially; and (b) that fact and perhaps other evidence demonstrate that Congress's intent to use a racial classification infects the other preferences and ICWA more broadly.

Accordingly, despite the attention that the third preference received during the oral argument, if the Court chooses to invalidate ICWA, it would probably do better by taking some other route to that conclusion.