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Excerpted From: Lucy Dempsey, Equity over Equality: Equal Protection and the Indian Child Welfare Act, 77 Washington and Lee Law Review Online 411 (April 19, 2021) (346 Footnotes) (Full Document)


LucyDempseySince its origin, the Indian Child Welfare Act (ICWA) has faced numerous constitutional challenges for its bold policy of treating Indian children differently than non-Indian children in child custody proceedings. Underlying and justifying this differentiated treatment is a deep-seated history of discrimination faced by Indian families from welfare agencies and state court systems. Described by some lawmakers as a “cultural genocide,” by the 1970s “a minimum of 25 percent of all Indian children [were] either in foster homes, adoptive homes, and/or boarding schools” instead of living with their parents. The United States Congress responded by drafting the ICWA [Indian Child Welfare Act] , a complex federal statutory framework for the removal and placement of Indian children into foster and adoptive homes that attempted to “reflect the unique values of Indian culture” and “ [provided] for assistance to Indian tribes.” The ICWA's framework immediately sparked accusations of equal protection violations. Even today, the ICWA [Indian Child Welfare Act] , with its underlying purpose of acknowledging important differences between Indian and non-Indian children, challenges courts to address the fundamental question of whether to prioritize equity of semi-autonomous Indian tribes and their children over legal equality.

In perhaps the most significant challenge to date, a Texas federal district court struck down the ICWA [Indian Child Welfare Act] as unconstitutional in 2018. The reaction nationwide was one of outrage. The case was appealed and a three-judge panel of the United States Court of Appeals for the Fifth Circuit reversed, affirming the ICWA's constitutionality under the Equal Protection Clause. Shortly after the decision came out, however, the Fifth Circuit voted to rehear the case en banc. Oral arguments in January 2020 garnered national attention in both the Indian and legal community for the potential implications not only on the ICWA, but on the constitutionality of all federal Indian law. Ultimately, the Fifth Circuit produced a deeply divided opinion, with a slim majority affirming the constitutionality of certain ICWA [Indian Child Welfare Act] provisions under the Equal Protection Clause, but remaining equally divided on the constitutionality of others. This convoluted ruling will likely be appealed to the Supreme Court. This Note will endeavor to address whether the ICWA [Indian Child Welfare Act] is constitutional under the Equal Protection Clause.

This Note will proceed as follows: Part II will bring into focus the historical and political landscape behind the implementation of the ICWA [Indian Child Welfare Act] in the late 1970s. Part III will provide a broad survey of equal protection jurisprudence relating to federal Indian laws throughout history, illustrating the unique status of quasi-sovereign Indian tribes in an equal protection context. Next, Part IV will narrow the focus to equal protection as applied to the ICWA [Indian Child Welfare Act] in particular and the various challenges the statute faces. The most recent constitutional challenge will be analyzed in detail in Part V with a close examination of the recent Fifth Circuit opinion. This Note will argue that the Fifth Circuit correctly approached the equal protection issue, acknowledging the unique status of Indian tribes and adhering to supporting precedent in federal Indian law. This Note will conclude that, whether under strict scrutiny or rational basis review, courts should uphold the constitutionality of the ICWA. The Fifth Circuit's reasoning provides a model which the United States Supreme Court should follow, solidifying the constitutionality of this crucial statute under the Equal Protection Clause.

[. . .]

In conclusion, whether or not the classification of “Indian child” is seen as a racial or political classification, the ICWA [Indian Child Welfare Act] should pass all levels of constitutional scrutiny. The Fifth Circuit en banc majority correctly determined the ICWA's definition of “Indian child” to be a political classification which passes rational basis review. This reading is supported by the historical and social context of federal Indian regulation, the statutory interpretation of the ICWA [Indian Child Welfare Act] itself, and the correct application of Supreme Court precedent. However, even if the statute is held to strict scrutiny review, the clearly compelling purpose and careful tailoring of the statute, as well as the inadequacy of race-neutral alternatives, demonstrate the unquestionable constitutionality of the ICWA. Therefore, the ICWA [Indian Child Welfare Act] is constitutional under the Equal Protection Clause of the United States Constitution and should be upheld in future courts as a crucial protection guaranteeing fair treatment for Indian children.

J.D. Candidate May 2021, Washington and Lee University School of Law.

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