A federal adoption law mandating that Native American children should be kept with Indian families whenever possible is under challenge by a white couple in Texas. They argue in Brackeen v. Bernhardt, a decision currently with the Fifth U.S. Circuit Court of Appeals, that they and other families can give Native children a good life — if race is no longer a consideration.

Professor Michael Doran of the University of Virginia School of Law, an expert in Native American law, says that the case has a high likelihood of being appealed to the U.S. Supreme Court, which he believes puts the entirety of federal laws protecting Indians at stake.

“From the perspective of Indians and Indian tribes, everything will turn on that hard look,” Doran says in a new paper, “The Equal-Protection Challenge to Federal Indian Law,” forthcoming in the University of Pennsylvania Journal of Law & Public Affairs.

He argues in the paper that if the Supreme Court were to overturn the Indian Child Welfare Act, which governs such adoptions, the effect might not be limited to that one law, and would be interfering with the long-standing authority of Congress over Native American policy.

Brackeen v. Bernhardt rose to the federal courts as an equal protection challenge. The white couple, Chad and Jennifer Brackeen, contend they are being denied adoption based on their race. The couple are represented by the Texas Attorney General’s Office and are among other named plaintiffs seeking relief. The defendants are the heads of the related federal agencies.

Arguments took place in January, and the case is pending en banc review, which means all 17 judges on the court will weigh in. The Brackeens have already successfully adopted one Native child because plans for a tribe to take custody fell through; they now seek custody of his half-sister.

The act was passed in 1978 after Native Americans began to see adoption by white families as dissolving their culture and pushed for protection. But Doran points out that Congress has maintained what appears to be an expansive level of control, or “plenary power,” over Native people and tribes since 1790.

“I take the congressional plenary power over Indians and Indian tribes as a given, although I recognize that several scholars and at least one sitting member of the Supreme Court express skepticism about it,” Doran writes. “As articulated time and again by the Supreme Court, this power is comprehensive; it permits Congress to regulate both the external and the internal affairs of Indians and Indian tribes, including the health, safety, morals, and general welfare of Indians. Additionally, the congressional plenary power is exclusive of state power; it is the federal government, not state governments, that exercises this complete regulatory authority over Indians and Indian tribes. Over the last century and a half, the Court has established the congressional plenary power as a bedrock principle of federal Indian law.”

The constitutional challenge based on race now presents a matter for the courts to reconcile.

Under the U.S. Constitution, government rules relating to race fall under the most stringent level of judicial review, “strict scrutiny.” These laws and policies are required to demonstrate a “compelling state interest” to be considered constitutional. And they must be “narrowly tailored” to serve that interest, using the “least restrictive means” possible.

But with Native adoptions, the courts have been using a modified version of the less constraining “rational basis review,” the default manner of looking at constitutional questions, since 1974, when Morton v. Mancari upheld preferential hiring for Indians at the Bureau of Indian Affairs.

“If the Supreme Court replaces modified rational-basis review with strict-scrutiny review, how many federal Indian statutes or regulations would be found to be ‘narrowly tailored’ to achieve a ‘compelling governmental interest’?” Doran asks. “The threat is very grave.”

He adds that it’s “both difficult and rare” for a law to survive a strict scrutiny review. The major exception has been affirmative action policies in college admissions.

But he points out that the Supreme Court has recognized congressional plenary power over Indians and tribes since the late 1800s. Should the court choose to use this as their lens in Brackeen or a similar case it might consider, then the rationale “precludes application of the strict-scrutiny standard of review and compels application of the rational-basis standard” because the congressional plenary power is specifically limited to Indians. 

Doran says such a result would not only be just, but it would prevent a major disruption in the law.

“This approach yields outcomes that are similar but not identical to the results under Mancari, and it broadly validates federal Indian law,” he writes.

Doran argues that the power Congress has to determine which rights foreigners can have, for example, is analogous to its domain over Native law. And he contends that it is impossible to remove race fully as a consideration if Native Americans are to continue to receive protections related to land, cultural artifacts, tribal sovereignty and other concerns.

“A federally recognized Indian tribe must comprise, to some substantial extent, people who are racially Indian,” he says. “Thus, whether a federal statute specifically refers to individuals of the Indian race or generally refers to individuals who are members of Indian tribes, the statute very likely has the effect of classifying individuals on the basis of race.”

To impose strict scrutiny review on federal Indian law, Doran argues, is effectively to say that Congress cannot exercise its plenary power over Indians and tribes.

He also points out to those who may decry preferential treatment that not all laws governing Indian activity are beneficial to them. There are numerous prohibitions on Native Americans, including preventing them from selling Native land without government approval.

In addition to writing about and teaching Native law, Doran’s other’s research interests include tax policy, executive compensation and legal ethics. He serves as The Honorable Albert V. Bryan Jr. ’50 Research Professor of Law.

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