Excerpted From: Ann Laquer Estin, Equal Protection and the Indian Child Welfare Act: States, Tribal Nations, and Family Law, 35 Journal of the American Academy of Matrimonial Lawyers 201 (2022) (206 Footnotes) (Full Document)


AnnLaquerEstinThe complex legal relationship between states, the United States, and Native nations can produce serious confusion in family law. Our system of federal Indian law, developed over several centuries, recognizes tribal sovereignty and defines the scope of state power with respect to federally-recognized Indian lands and communities. For the most part, however, this body of federal law has not directly addressed family law, where there may be a significant overlap between tribal and state authority.

In the Indian Child Welfare Act of 1978 (ICWA), Congress defined the jurisdiction of state and tribal courts in cases involving Indian children, and established substantive and procedural rights for parents in these proceedings. ICWA recognizes that Indian tribes have a profound interest in their children and provides a path for protecting these interests structured within the long and complicated relationship between the United States, tribal nations, and state governments.

The Supreme Court considered ICWA in Mississippi Band of Choctaw Indians v. Holyfield and Adoptive Couple v. Baby Girl; and will hear a third case during its new term. Haaland v. Brackeen comes to the Court from a sharply divided en banc ruling in the Fifth Circuit, in a case that sought to overturn the statute. A majority of the Fifth Circuit rejected this challenge, overruling the court below and affirming Congress's authority to enact ICWA. The judges divided equally on one aspect of the plaintiffs' equal protection challenge. In addition to reviewing this question, subject to a determination of the plaintiffs' standing, the Supreme Court also agreed to hear issues raised by several state plaintiffs under the anticommandeering doctrine of the Tenth Amendment that divided the Fifth Circuit.

In upholding the broader constitutionality of ICWA, the Fifth Circuit followed long-settled Supreme Court precedent recognizing Congress's broad powers and responsibilities for Native communities. In the past, the Court has taken a highly deferential approach in equal protection challenges to federal legislation that includes classifications based on tribal membership. The test was first articulated in Morton v. Mancari: “As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed.”

Unpacking the complexities of ICWA and the Brackeen case begins with the principles of federal Indian law. Our Constitution gives the federal government exclusive authority to recognize Indian nations or tribes, to legislate with respect to tribes and their members, and to define the powers of states with respect to Indian governments and communities. The right of Indian nations to self-government has been respected in American law for centuries. Decisions from the Marshall Court to the present day affirm that tribes retain an inherent sovereignty that predates the Constitution, distinct from that of the state and federal governments. This authority is at its strongest with respect to tribal members and questions of family law.

At the same time, family law disputes involving tribal members also come up in state courts. Divorce, child support, custody, and inheritance cases may cross reservation borders, presenting complex conflict of laws questions that highlight the importance of comity and cooperation between tribes and states. In child welfare cases, ICWA has helped to build this cooperation, and many states have signaled their strong support for the law. This story is easily lost amid the challenges directed to the statute, but it presents more important lessons for family lawyers. With its careful balancing of tribal and state responsibilities, ICWA has allowed more effective protection for the interests of Indian children and their families.

This article offers family law practitioners an introduction to the unique balance of federal, tribal, and state authority with respect to Native American communities and tribal members, and the Supreme Court's distinctive equal protection jurisprudence in this context. It considers the challenges posed by cross-border family litigation from this perspective, arguing that states have an important role to play in recognizing and supporting the ties between tribes and their members.

Part I frames the discussion with an overview of federal power in Indian affairs, tribal government authority with respect to membership and family law questions, and the interaction of state and tribal courts in family law matters including ICWA. Part II describes the Supreme Court's approach to Equal Protection in federal Indian law cases and considers the equal protection issues before the Court in Brackeen. Part III argues for building on the experience gained with ICWA to expand state and tribal comity and collaboration in child welfare and other family law matters, including domestic violence, child support, custody, and divorce.

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Families have long been understood as central to the self-definition of communities, states, and nations. For citizens of tribal nations, subject to the jurisdiction of the United States, due process and equal protection principles support the same right to bring family disputes to courts in their communities that other Americans enjoy. As the Supreme Court has recognized, access to courts is especially important in family law. Fairness to tribal litigants also requires a significant level of comity and respect in family cases, analogous to the full faith and credit extended in interstate cases. Recognition of personal status has had a high priority in the conflict of laws generally, and specifically with respect to Native communities.

With the Indian Child Welfare Act, Congress gave shape and reality to these principles, reversing a century of federal policies that undermined Indian families and tribal self-determination. States were part of the problem that Congress identified, and ICWA has prompted greater collaboration and respect for tribal courts and governments. Despite the opposition of a handful of states, a far larger number have voiced their strong support for ICWA in Haaland v. Brackeen. The challenge on equal protection grounds flies in the face of settled doctrine upholding federal legislation that fulfills Congress's obligations to tribal nations.

Beyond ICWA, there are important unanswered questions for tribes, states, and the lawyers who work with families that cross borders of geography and membership. States and tribes have opportunities to foster pragmatic solutions and good working relationships in other areas of family law, including child custody, child support, divorce, and domestic violence. Congress and the Supreme Court share responsibility for the convoluted jurisdictional rules that complicate these cases, which have assumed either a complete separation between Indian and non-Indian people or the assimilation and disappearance of Native communities. In a world with strong tribal nations and more fluid boundaries between states and tribes, the path forward depends on comity and cooperation.

Aliber Family Chair, University of Iowa College of Law.