Bloomberg Law
Nov. 9, 2022, 9:45 AM

Indian Child Welfare Law Is Third High Court ‘Color-Blind’ Test

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson

The US Supreme Court is hearing the third case this term arguing for a “color-blind” application of the Constitution in challenging programs supporters say benefit Black Latino, and Native Americans.

Challengers in these cases say the post-Civil War Reconstruction Amendments prohibiting racial discrimination forbid governments and related institutions from using race in establishing voting districts, considering admissions in higher education, and—in the latest one—attempting to prevent the breakup of American-Indian families.

At issue in Haaland v. Brackeen, the case to be argued Wednesday, is the 1978 Indian Child Welfare Act that give preference to American-Indian families in the adoption of Native- American children.

The law “discriminates against Indian children based on ancestry, blood quantum, and lineage,” said Gibson Dunn partner Matthew McGill, who represents the non-native couples challenging the law. It further “discriminates against prospective parents.”

But tribes and their supporters say the child welfare law shouldn’t be viewed in the same light as cases about minority voting rights or affirmative action. “This case isn’t at all about race,” said Cherokee Nation Deputy Attorney General Chrissi Nimmo.

Federal courts have long held that laws distinguishing on the basis of tribal membership are based on political affiliation, not race, Nimmo said.

Through Line

In October, the justices considered a challenge alleging Alabama’s congressional maps were drawn to disadvantage Black voters. They say Section 2 of the Voting Rights Act requires the state to draw districts in a way that provides two Black-majority districts, in which minority voters have the opportunity to elect the candidates of their choice.

In defending the maps drawn by Republican-led legislature, Alabama argues that the Voting Rights Act doesn’t allow the state to use race—even to benefit Black voters.

Advocates challenging affirmative action programs at Harvard and the University of North Carolina made similar arguments in a pair of cases argued Oct. 31.

Those on the other side of the voting and affirmative action cases say the Reconstruction Amendments weren’t intended to be race-neutral, but instead permitted race-conscious laws intended to protect newly freed slaves.

ICWA sets up similar racial preferences for native populations, those challenging the law say, by making it harder for states to take American-Indian children out of their homes for reasons such as neglect, and then prioritizes adoption by family members, tribal members, or families of any federally recognized tribe.

In passing ICWA, Congress said “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”

Supporters of a color-blind Constitution say the through line in all of these cases is racial discrimination.

All the laws and policies at issue in these cases were passed with “good intentions,” said Oliver Dunford, of the libertarian law firm Pacific Legal Foundation, which filed amicus briefs in the ICWA and affirmative action case.

ICWA at least in practice, prevents states from treating native children like they do for every other child—that is, with the best interest of the child as the lodestar in custody and adoption proceedings, Dunford said.

New Opportunities

Nimmo says that’s the wrong way to think about ICWA since the law is tied to tribal membership rather than race.

When it comes to issues of tribal self-governance, land, and culture, federal courts have “repeatedly said that this doesn’t raise an equal protection challenge because it is not race based—it’s a political status as a of member or citizen of a tribal government,” Nimmo said.

Timothy Sandefur of the conservative Goldwater Institute agrees that the Supreme Court has traditionally treated what he called “outright racism” somewhat differently from issues involving Native Americans.

In a case from the 1970s, the Supreme Court upheld hiring preferences for tribal members who worked for the Bureau of Indian Affairs.

The court there said classifications based on tribal membership don’t “fall within the forbidden zone of racial discrimination,” Sandefur said. Whether that will continue or not in the ICWA case is unclear, he said.

Sandefur said the current court is “very attuned to racial discrimination by the government,” something that he says bodes well for people like him who think ICWA is unconstitutional.

ReNika Moore of the progressive American Civil Liberties Union said it’s no coincidence that this case along with those involving voting rights and affirmative action are being considered now that the Supreme Court has a 6-3 conservative majority.

Conservative groups recognize that the current court is receptive to these kinds of arguments, even if history, precedent, and the facts don’t support their view of the Constitution, Moore said.

Even though there’s recent precedent against the color-blind version of the Constitution, conservatives are “seeing new opportunities with the new makeup of the court that they didn’t have, even a few years ago,” Moore said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at

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