Abstract

Excerpted From: Neoshia R. Roemer, Equity for American Indian Families, 109 Minnesota Law Review 1713 (April, 2025) (590 Footnotes) (Full Document)

In the pursuit of fulfilling its mandate to Indian Tribes, Congress enacted the Indian Child Welfare Act (ICWA) in 1978 to remedy decades of Indian child removal. For nearly fifty years, state courts around the United States have implemented [Indian Child Welfare Act ] in certain types of child custody proceedings involving Indian children. In the past decade, [Indian Child Welfare Act ] has garnered both positive and negative attention as modern family regulation scholars look toward [Indian Child Welfare Act ] for solutions to an increasingly criminalized, punitive child welfare system, and [Indian Child Welfare Act ]'s opponents search for arguments to render the Act void.

In June 2023, the Supreme Court opined on [Indian Child Welfare Act ]'s constitutionality in Haaland v. Brackeen. In Brackeen, a group of state and individual plaintiffs argued that [Indian Child Welfare Act ] was unconstitutional as it violated (1) Congress's Article I authority to regulate Indian Affairs, (2) the anticommandeering principle of the Tenth Amendment which had previously left child welfare to the state police power, and (3) the equal protection doctrine of the Fifth Amendment. While these plaintiffs argued that [Indian Child Welfare Act ] violated their constitutional rights in a five-year long litigation battle, the lives of three Indian children--their ability to maintain ties to their families, culture, and to grow up in a safe and healthy environment--lay at the heart of the case. Indeed, Justice Barrett's opinion in Brackeen opens with, “This case is about children who are the most vulnerable: those in the child welfare system.”

Historically, Indian children have been the cornerstone of federal law and policy meant to eliminate Indian Tribes. Perhaps in a somewhat shocking move, the Court upheld [Indian Child Welfare Act ]'s constitutionality in a 7-2 decision. To be clear, [Indian Child Welfare Act ]'s constitutionality itself was not a shock. The survival of the Act, given its opponents' penchant for creating well-curated and financially-resourced cases before the Roberts Court, which has shown its hand at being the “post-racial” court and friend of the conservative legal movement, was shocking.

While Brackeen was a win for [Indian Child Welfare Act ] in 2023, the Court declined to answer whether [Indian Child Welfare Act ] violates the equal protection doctrine. When it came to this issue, the Court rightfully held the plaintiffs did not have standing to bring the claim--right before explaining to the plaintiffs exactly how they might confer appropriate standing to bring the equal protection claims in the future. Indeed, a similar question as to equal protection came before the court in an Indian gaming case. Although equal protection is always a topic that gains the attention of the legal academy because of its purported social justice potential, equal protection is a much more complex conversation when it comes to Indian law. An adverse ruling on equal protection could essentially dismantle federal Indian law--the body of law that governs the self-determination of American Indian Tribes--piece by piece. In Brackeen, the Court did not choose a middle ground on this issue. Rather, it declined to answer the question on procedural grounds.

Equal protection, at least how the doctrine is understood today, reinforces colonial era rot. Colonialism first excluded American Indians from the guarantee of equal protection and even U.S. citizenship. Colonialism demanded Tribes divest all their resources to American settlers in the name of nation building and progress. Settlers--and the states they would form--were as important to the process of colonialism as the federal government. At the expense of erasing the true nature of colonialism and its lingering impacts on American Indian communities, nation building and progress are the myths that the American dream and exceptionalism rest upon today. A large foundation for those myths is the mirage of equality supported within the modern understanding and application of the equal protection doctrine.

Today, [Indian Child Welfare Act ]'s opponents bring race-based equal protection claims challenging the Act largely manufactured with one goal in mind: to demand access to the most important resource that Tribes have--their children. Although [Indian Child Welfare Act ]'s opponents argue that Indian children cannot qualify as “commerce” to bring the statute under Congress's purview, [Indian Child Welfare Act ]'s opponents also see those same Indian children as commodities for “good families.” Since the post-World War II era, children and their ability to create nuclear families have been commodities--commodities that have often come at a cost to their biological families. Given the history of Indian child removal, Congress, in passing [Indian Child Welfare Act ], acknowledged that was the folly, cruelty, and inhumanity of a system that purposely extracted Indian children as resources from their communities for the benefit of equality under the auspices of American nationhood.

In many ways, Brackeen epitomized American equality. Through the legal system, America's first rights holders--its settlers--were able to protest what they viewed as an injustice: not being able to adopt the children of their choosing. By using equal protection claims to demand a uniformity that has never existed for anyone except America's rights holders, [Indian Child Welfare Act ]'s opponents attempted to further the colonial extraction of Tribes' future generations. Like the American mythos that proudly boasts we are all created equal, opponents of [Indian Child Welfare Act ] further colonial assimilation by projecting a specific brand of American identity that prioritizes the “good family” or “right kind of families” vis-à-vis the rights of white parents with means over others. Equality--the kind best (mis)understood to mean that everyone is operating on the same level playing field--is neither conducive nor responsive to [Indian Child Welfare Act ]'s goals. In this vein, “good parents” are red herrings used to hide neo-colonial goals for the American Indian family. Indian children are human objects who need to be saved, or rescued, from their tribal communities and families.

After all, as this Article explores, colonialism in the United States was never a project that the government conducted on its own. Moving beyond arguments over whether strict scrutiny or rational basis should define [Indian Child Welfare Act ] in an equal protection challenge, this Article encourages a new framework altogether: equity. Here, equity does not mean an equitable remedy or utilizing a court of equity. Rather, equity means “justice according to natural law or right.” There is a great deal of justice to be had in preserving tribal sovereignty and Indian families and in continuing to protect them from colonial intrusions into their families.

Throughout the 1970s, Congress heard testimony from Indian Tribes, Indian parents, and advocates alike on the issue of Indian child removal. A common thread within that testimony was “equal justice.” [Indian Child Welfare Act ] represents the pursuit of equal justice. It was not a racial remedy or panacea. Amidst a history of Indian removal policies, [Indian Child Welfare Act ] has been a vehicle for Tribes securing their futures as they have experienced population growth during the last five decades. [Indian Child Welfare Act ]'s opponents attack those tribal futures using a legal tradition that has increasingly perverted the concept of equality as defined by the equal protection doctrine. As such, this Article challenges the notion that the equal protection doctrine's form of equality is the appropriate framework for an [Indian Child Welfare Act ] challenge and proposes a reconsideration of [Indian Child Welfare Act ] as an anti-colonial equity statute as it was created and executed through American legal history and tradition.

Once aspirational and a tool of progress during the Civil Rights Movement, equality as defined by the equal protection doctrine has reached its Empire Strikes Back era. This era champions an individual rights approach that centers the right to compete as opposed to equality for groups. Claiming minority status and perceived wrongs, those who have always held dominant positions within American society are fighting to dismantle group protections. As such, it is imperative scholars continue to look outside of the box as federal Indian law has always required given the unique status of American Indian Tribes. Therefore, this Article argues a new way forward for [Indian Child Welfare Act ]: anticolonial equity.

Here, I use caution with my language. Equality is a much broader concept than the judicial delineation of the Fourteenth Amendment's Equal Protection Clause. Indeed, self-determination itself is a form of equality. [Indian Child Welfare Act ]'s mandate is--as it has always been--a vision of equality for American Indian Tribes and families. Realistically, my use of “equity” instead of ““equality” is to distinguish what [Indian Child Welfare Act ] is meant to do with what the equal protection doctrine does because [Indian Child Welfare Act ] falls within a true equality paradigm. Thus, this Article does not rebuke the concept of equality. Rather, this Article rebukes the application of the equal protection doctrine as it has been applied since Justice Powell's infamous opinion in Regents of the University of California v. Bakke decried the likelihood of white Americans, the dominant group, becoming the minority group in America if the Court did not course correct American jurisprudence's understanding of equality. This course correction has created a marketplace of rights in family regulation that inherently leads to less equality.

Various examples throughout history, including segregation and vagrancy laws, demonstrate the American legal system's problem with conceptualizing the vision of equality that Abraham Lincoln's Radical Republicans envisioned with the ratification of the Fourteenth Amendment in 1865 that included protecting citizens from the state as Congress sought to exclude American Indians from the broader protections of citizenship guaranteed within the Fourteenth Amendment. As this Article will discuss, equality has sometimes meant assimilation and attempts at cultural eradication. As America has struggled with the project of equality, I use equity here to uncouple [Indian Child Welfare Act ] from this problem with the Court's application and understanding of equality via the equal protection doctrine.

As such, [Indian Child Welfare Act ] must be understood, utilized, and applied as an anti-colonial equity statute. Here, anti-colonial applies to more than just what the federal government has done and currently does. For colonialism to work, it required a great deal of settler complicity. Although colonialism is usually synonymous with the federal government, state actors and individual actors also carried out and benefitted from the colonial project. After all, tribal sovereignty, the Indian family, and Indian children need protection from state and individual actors who would seek to remove Indian children and continue placing them outside of their communities at disproportionate rates. Anti-colonial equity is a check against the power of the state and of individuals that American history books may have forgotten--but left an impact so devastating that Tribal Nations are still recovering their missing generations of children.

An anti-colonial equity statute's viability does not turn upon a fickle concept of equal protection that may be co-opted by those who simply speak the language of the state and look the part of the “right kind of family.” The language of respectability, and frankly whiteness, has long been used to divest Tribes of their children and tear American Indian families apart. As sovereigns, Indian Tribes have a natural right to maintain their membership. Justice, not equality, requires that years of predatory assimilative practices coupled with modern family regulation schemes precipitate protections for their member children. This comports more with the theme of equity than one of equality.

Traditional scholarship in this area has focused on the racial-versus-political distinction found in Morton v. Mancari. However, as this Article will explore, modern legal perceptions and successive attacks on [Indian Child Welfare Act ] are eroding that distinction--in a very purposeful way--to demonstrate why Indians should not have so-called special rights. As the Supreme Court correctly determined in Brackeen, federal Indian law is different than other types of jurisprudence and laws, and perhaps by fluke, the framers built an anti-colonial principle into the U.S. Constitution when clarifying that Congress alone would hold authority to regulate Indian Tribes. Once supremely one-sided in many ways, Congress's authority has morphed into more of a tenuous partnership between the federal government and individual Tribes since the mid-1970s. This Article taps into this history and body of scholarship with the claim that although race and political status are still important to broader Indian law conversations, the distinction is quickly eroding in the twenty-first century. This is likely truer before a Supreme Court that is poised to strike down anything and everything it believes is a racial classification challenging its bid for a so-called post-racial society.

The challenges to [Indian Child Welfare Act ] should be seen as a fight between equality and equity in which the political is equity. [Indian Child Welfare Act ] is about justice for Indian Tribes and their members--both those who are parents and those who are children. Listening to advocates, activists, tribal members, and legal professionals, Congress exercised its duty of protection and devised a plan to ensure that Indian children would not be treated the same as other children. This is not because Congress thought Indian children were better than other groups of children or deserved more protection, but because Congress understood that Indian children are a distinct group with no true peer group in the United States. As such, challenges brought against [Indian Child Welfare Act ] should be removed from the equal protection paradigm all together.

This Article revisits a prior work in which I explain this distinction and a way to bridge this gap and joins a growing body of literature that suggests perhaps the racial-versus-political status distinction is not as useful as it once was. While previous literature has focused on assessing the value and place of equal protection claims more broadly, this Article engages that literature in two ways. First, this Article does not call for relitigating Mancari or the political status that American Indian Tribes hold. Rather, this Article describes the fallacy of the equal protection doctrine and provides an equity framework for contemplating what political status should mean in its fully realized form. Second, this Article contemplates the logical, moral, and legal fallacy in allowing equal protection claims to move forward and circumvent congressional prerogatives to remedy the destruction of American Indian families and Tribes, tribal selfdetermination, and the right to family integrity that American Indians hold. As a general matter, the concept of equal protection contradicts and serves as a modern affront to reproductive justice for American Indians.

In Part I, this Article more fully articulates how [Indian Child Welfare Act ] is an anti-colonial equity statute. Part I.A begins with a discussion of why [Indian Child Welfare Act ] is necessary, including a brief history of the Act and its modern necessity. Although this Article does not provide a thorough history, the focus on the historical component here is in the colonial policies and politics that made [Indian Child Welfare Act ] necessary. In Part I.B, this Article defines what [Indian Child Welfare Act ] does both through the anti-colonial and the equitable lens. In Part I.C, this Article describes [Indian Child Welfare Act ] during the Brackeen years before eventually describing some of the more relevant claims made in Brackeen and its outcome.

Part II focuses on the equal protection challenges to [Indian Child Welfare Act ]. Part II.A begins with a discussion on the equal protection doctrine and Indian law. In Part II.B, this Article discusses specific arguments about race and political status and how to move beyond these arguments in the context of equal protection. In Part III, this Article focuses on bridging the gap between equality and equity. Here, this Article imagines how scholars can think beyond the confines and limitations of the equal protection doctrine to bridge the gap between race and political status. Finally, this Article concludes with a brief discussion on looking ahead to the next equal protection challenge to [Indian Child Welfare Act ].

[. . .]

Although Congress remains in the driver seat of the colonial project, Congress did not conduct the colonial project alone. Individual citizens have long been partners in this project. Without question, Brackeen affirmed the constitutionality of [Indian Child Welfare Act ]. Although the Court did not answer the equal protection question on its merits, its decision means that [Indian Child Welfare Act ] remains good law. Given the Court's support of plenary authority and rejection of commandeering arguments furthered by the plaintiffs, a future equal protection challenge might survive too. But what does this mean for scholars and those advocating on behalf of [Indian Child Welfare Act ]?

First and foremost, we must always recognize that [Indian Child Welfare Act ] exists because of Congress's express duty to protect tribal sovereignty vis-à-vis its trust responsibility. Second, [Indian Child Welfare Act ] is generally a best evidence practice in family regulation, meaning that in [Indian Child Welfare Act ] cases, the outcome may not always be one in which a family remains unified. However, maintaining the integrity of the Indian family is always the first goal. The second, and an overarching goal, is to ensure that an Indian child may maintain ties to their tribal culture. Third, understanding [Indian Child Welfare Act ] is an anti-colonial equity statute that does not comport with the values of equal protection is paramount. Congress enacted [Indian Child Welfare Act ] precisely because state and individual actors abused their power, wreaking havoc on Indian Tribes and families alike. Allowing these actors to assert rights to Indian children is precisely what Congress exercised its plenary authority over Indian affairs to discontinue.

Although limited to [Indian Child Welfare Act ] and federal Indian law, this Article has provided a strong rebuke to the equal protection doctrine as it stands. As Americans, we may believe the equal protection doctrine's formulation of equality is the bedrock of our society. But this equality is moreso a belief built upon a myth that we are all created equal under the law. Perhaps that is true in the eyes of a higher power, or even in a human rights framework in which we all have equal footing. However, we cannot all be equal under the law so long as a dominant group can levy substantial attacks on the existence of groups that they have long attempted to not only subjugate but culturally eradicate. American jurisprudence--as well as law and policy--in Indian law demonstrates the truth of this matter. We did not all start at the same starting line.

Cases like Brackeen demonstrate how colonial legal doctrines allow equality to breed inequity. I highly suspect that [Indian Child Welfare Act ]'s proponents, and indeed members of the Roberts court, will not give this a rest. If the equal protection question were ever raised in an [Indian Child Welfare Act ] case again, scholars and advocates must be prepared to argue the faults of equality while promoting the principles of tribal sovereignty and equity upon which Congress rested [Indian Child Welfare Act ]. Falling into arguments on racial classification on this issue is to engage logical folly. Scholars and litigators must be clear about what equality means here and for whom. If we lean in and focus on the race-based arguments, we miss the heart of the challenge all together.

Here, equality is the settlers' equal opportunity for continued colonialism under the auspice that we are all equal now. As current events demonstrate, this version of equality is little more than a dream yet to be achieved. Congress saw this for what it was in the 1970s, and as such, few legal examples exist that provide such a clear guiding principle and rebuke to the dismantling of families as [Indian Child Welfare Act ]. [Indian Child Welfare Act ] itself is proof that Congress understood that equal protection of the laws has never existed for American Indians as members of Tribal Nations whose individual rights are so often tied into the federal trust relationship. Congress has a long history of ensuring that American Indians would not receive equal protection of the laws until tribal governments were gone and the process of full assimilation was complete. And thankfully, assimilation is a project the federal government has never been able to achieve.

If it were not a fool's errand, perhaps this Article might suggest that scholars and attorneys simply ignore the racial vs. political divide in discussing equal protection. [Indian Child Welfare Act ] litigation and evolving understandings on family regulation demonstrate it makes little sense to try avoiding the elephant in the room: [Indian Child Welfare Act ] stands apart from the conservative legal movement's attacks on race-based programs primarily because it is imbued with an anti-colonial equitable mandate. [Indian Child Welfare Act ] has never been about equality for settlers and preserving the settler colonial project, but it has always been an equitable measure to ensure Tribes can continue to enjoy self-determination and that the American Indian family can persist.

Neoshia R. Roemer is an Associate Professor of Law at Seton Hall Law School.