By: Ryan Liston, Volume 107 Staff Member
The United States and the colonies that predated it have a sordid past when it comes to the treatment of Indigenous people. Among the countless examples of mistreatment, one particularly shameful practice was separating Indigenous children from their parents in an attempt to assimilate the children into European-American culture and effectively eradicate Indigenous ways of life. This practice began in the late 1870s with the United States government forcing Indigenous children into boarding schools and was, now infamously, summed up by U.S. Cavalry Captain Richard Henry Pratt, founder of the Carlisle Indian Industrial School, as, “Kill the Indian in him, and save the man.”
After the boarding school era receded in the early 20th Century, large numbers—at least 25 percent—of Indigenous children continued to be separated from their families “by state child welfare and private adoption agencies.” Congress responded by passing the Indian Child Welfare Act (ICWA) in 1978.
ICWA governs adoption and foster care placements of “Indian children,” or individuals who are under 18 years old and who are members of an Indian Tribe or eligible for tribal membership. It also determines when tribes have exclusive jurisdiction and when states may exercise jurisdiction. When proceeding under state jurisdiction, the statute establishes tiered preferences for adoptive placements of Indigenous children: “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”
Even after ICWA was enacted, Indigenous children in Minnesota continued to be separated from their families at high rates. Seeking to address the state-level disparities and to build on ICWA, the Minnesota Legislature passed the Minnesota Indian Family Preservation Act (MIFPA) in 1985. While issues persist today, ICWA and MIFPA are critically important to the survival of tribes and the strength of tribal sovereignty.
Currently, the Supreme Court is reviewing the constitutionality of ICWA in Brackeen v. Haaland. The Court is considering two questions: whether ICWA’s preference for Indigenous family placements is unconstitutional racial discrimination under the Equal Protection Clause of the Fourteenth Amendment, and whether ICWA’s mandate violates the anti-commandeering doctrine under the Tenth Amendment by requiring state compliance with the federal program. Depending on how the Court rules, state law equivalents like MIFPA may or may not be vulnerable to legal challenges. Anticipating the Brackeen decision, the Minnesota Legislature approved amendments to MIFPA adjusting provisions that relied on ICWA.
To more fully explore the potential ramifications of ICWA being overturned on MIFPA and Indian child welfare cases in Minnesota, I spoke with Scott Buchanan, a staff attorney with the Fond du Lac Band of Lake Superior Chippewa, who represents the Band in ICWA cases. Below is an excerpt of the interview, edited for clarity and brevity. All of Buchanan’s statements are his own and do not necessarily represent the views of the Band.
Ryan Liston: Do you have a sense of how the Court will rule in Brackeen v. Haaland?
Scott Buchanan: I listened to the oral arguments as they were being made, and—this is just my opinion—I did get the sense that the anti-commandeering argument had some traction, at least with Justices Samuel Alito and Brett Kavanaugh. I didn’t feel easy when the argument was over. Specifically, I have worries about the anti-commandeering issues. But we’ll see.
I thought the Equal Protection arguments that were made were pretty weak. I got the sense that the Justices understood ICWA’s designation of Indian children being linked to a political status as opposed to a racial status. There were a couple questions that seemed to try to attack that political status, specifically regarding the “other Indian families” placement preference within ICWA.
If I recall correctly, the question used a hypothetical of an Indian child living somewhere like Florida and being placed with a tribe, for example, in Washington. They said that there are historically no political contacts between the two tribes. They’re very distant geographically, they’re probably distant culturally, and they’re distant politically. So how do you reconcile that with the claim that this is based on a political status? I think the person defending ICWA dealt with that question well.
The thing that got me with that question was that it involved a very black and white hypothetical that fails to recognize the historical cultural links between different tribes. There are tribes that share reservations. There are tribes that historically have had long cultural ties, even though they are different political entities. I didn’t get the sense that the Court’s question, in that case, really dealt with the nuance that exists regarding political status in Indian country.
I do get the sense, though, that a fair amount of the Justices on the Court understand the unique challenges involving the relationship between the several states, the United States government, and tribes. Particularly, I got a good sense that Justice Neil Gorsuch has a really good handle on the issues. I have no insight into whether those Justices can bring any of the others around to their point of view behind the scenes.
If I were a betting man, I’d say portions of ICWA will be found unconstitutional, portions will be upheld, and either Congress will have to come up with a fix or, better yet, the states will have to fix it.
RL: Could you briefly explain how the outcome of Brackeen could impact MIFPA if it is decided on anti-commandeering grounds versus on Equal Protection grounds?
SB: On anti-commandeering, we see the same kinds of things in immigration law, where local and state governments cannot be used to enforce immigration law, deportation, et cetera. Essentially, under anti-commandeering principles, the federal government cannot force state governments to enact federal programs. In that case, MIFPA is a state statute, so the federal government isn’t forcing Minnesota to comply.
As far as Equal Protection, the way MIFPA is drafted is very clear that this is based on political status rather than racial identification. I think that’s clear also even at the federal level.
I’ll use an example. Let’s say we have a First Nations person who is an Ojibwe from Thunder Bay, Ontario, and they’re a member of the First Nation over there. And let’s say they have a blood quantum of 50 percent, or 75 percent, or even 100 percent. They marry another First Nations person, and they establish residency in Duluth. If they become involved with the child protection system, they are not afforded the protections of MIFPA or ICWA. They could come up with a document from the Government of Ontario stating that they have 75 percent blood quantum, that their children are at 60 percent based on the marriage between these two people, and that they’re First Nations. Doesn’t matter. They’re not a member of one of the federally recognized tribes of the United States, so under Minnesota and federal law, they would not receive the statutory protections. That makes it very clear that it’s a political status as opposed to a racial status.
I think it’s unlikely that equal protection will be a problem. As I said, I do think anti-commandeering could be a problem.
RL: Assuming MIFPA is fine as a matter of state law, could there still be negative consequences for Indigenous families in Minnesota if ICWA is partially or fully struck down?
SB: By integrating ICWA into MIFPA and effectively mirroring the best parts of ICWA into Minnesota law, I think we have limited some of the potential damage. Where I think the real issue will exist is in situations where you have tribes that have their reservation within the borders of Minnesota but have band members living in other states. For example, Fond du Lac is near a border area where we deal with Douglas County, Wisconsin, fairly often. I’m not up to speed as to what they’re doing in Wisconsin to address this issue, but if there’s a problem with ICWA, it could affect our ability to protect the rights of Indian children and families that belong to Minnesota tribes in other states. If ICWA is overturned, there is going to be an impact. As to the depth of that impact, I can’t say.
RL: If the Court decides Brackeen on Equal Protection grounds, could there be broader consequences beyond ICWA?
SB: At the root of ICWA and MIFPA, at least for most tribes, is not only the protection of Indian children and families but the question of sovereignty in being able to exercise decision making power within their own reservations about their own people that belong to their tribes. Equating the statuses of being Indian as a racial designation as opposed to a political designation, I believe, harms sovereignty and the long-term viability and survival of tribes.
Indian tribes determine who is eligible for membership within their own government framework. I don’t want to be alarmist, but by making it a racial issue, you are effectively creating a situation where Native Nations would disappear literally by being bred out. It’s an indelicate way of saying it, but it’s taking the ability of tribes and bands to control their own destiny away from them. It’s not a clear path, but it is simply another brick in the road leading towards the destruction of sovereign Indian nations. That’s my personal belief about it, so I would have real concerns making Indian political status a racial issue because at some point then outsiders are going be able to tell tribes that they don’t meet the racial requirement to be considered an Indian—they’re not a tribal member.
RL: In the decades since ICWA and MIFPA were enacted, Indian family separations have remained an issue, including in Minnesota. Why are these statutes still important despite the ongoing problems?
SB: A lot of the problems that exist in Indian country continue to exist in Indian country—poverty, drugs, despair—and all of these are linked to historic trauma that Native peoples have suffered at the hand of both the state and local governments. There’s no doubt about that. But by keeping ICWA and MIFPA in place, you’re allowing tribes to basically care for their own, to be involved with the care of their people.
With some of the arguments against MIFPA and ICWA, there is almost an unspoken statement or belief that Indian people don’t care about their kids as much as the state, and nothing can be further from the truth. For Indian people, these are their children, these are their families, their brothers, their sisters, their cousins. They are emotionally invested in this. It is in the long-term interests of the community, the band, and their families that these people succeed, that these kids are taken care of.
MIFPA and ICWA make tribes a part of the solution as opposed to imposing decisions upon them and making them victims of the state. They get to work on their own and with the state to attempt to deal with these problems. Again, so much of it has to do with sovereignty. Indian people can run their own affairs. They don’t need folks that are on the outside looking in telling them how to live their lives.
 See, e.g., Native American, Libr. of Cong., https://www.loc.gov/classroom-materials/immigration/native-american [https://perma.cc/87WQ-D7RA] (“The centuries that followed the arrival of Europeans were years of tremendous upheaval, as the expansion of settler territory and the founding and growth of the United States resulted in Native American communities being moved, renamed, combined, dispersed, and, in some cases, destroyed.”).
 Becky Little, Government Boarding Schools Once Separated Native American Children from Families, History (June 22, 2022), https://www.history.com/news/government-boarding-schools-separated-native-american-children-families [https://perma.cc/7RCX-667H].
 Little, supra note 2.
 About ICWA, Nat’l Indian Child Welfare Ass’n, https://www.nicwa.org/about-icwa [https://perma.cc/VH97-AQD5] [hereinafter NICWA] (“In fact, research found that 25%–35% of all Native children were being removed; of these, 85% were placed outside of their families and communities—even when fit and willing relatives were available.”); H.R. Rep. No. 95-1386, at 9 (1978).
 25 U.S.C. §§ 1901–1963; see also NICWA, supra note 5.
 25 U.S.C. § 1903(4).
 25 U.S.C. § 1911.
 25 U.S.C. § 1915(a)(1)–(3).
 Kathryn A. Carver, The 1985 Minnesota Indian Family Preservation Act: Claiming a Cultural Identity, 4 Minn. J.L. & Ineq. 327, 328–29 (1986) (“Figures for Minnesota during the same time period reported that one in eight Indian children under age eighteen was in an adoptive placement, and one in four Indian children under the age of one year was adopted. These figures did not improve even with the passage of the federal ICWA in 1978. In 1982 the United States Department of Health and Human Services compiled a report from a national one-day count of children in foster care placements. For Indian children under the age of twenty-one, Minnesota ranked first nationally in out-of-home placement although the state ranked eleventh nationally in the size of its population of Indian children.” (internal citations omitted)).
 Minn Stat. §§ 260.751-835.
 Carver, supra note 10; see also Indian Child Welfare Act/Minnesota Indian Family Preservation Act Manual, Minn. Dep’t Hum. Servs. 5 (Aug. 2022), https://www.dhs.state.mn.us/main/groups/county_access/documents/pub/dhs16_157701.pdf [https://perma.cc/5YXU-MFTG] (“The Minnesota Indian Family Preservation Act (MIFPA) [Minn. Stat. §§260.751-835] was established in 1985 to strengthen and expand parts of ICWA.”).
 See Jessica Washington, How Minnesota’s Foster Care System Reminds Native Moms of a Racist Legacy, Mother Jones (Dec. 21, 2021), https://www.motherjones.com/politics/2021/12/how-minnesotas-foster-care-system-reminds-native-moms-of-a-racist-legacy [https://perma.cc/K7Q2-NKPD] (“Overall, Native children in 2019 were 16.8 times more likely than white children to be in out-of-home care, according to an October 2020 Minnesota Department of Human Services report. This number does not include children in the state who identified as two or more races, over half of whom had American Indian as one of those races.”); NICWA, supra note 5 (“Native families are four times more likely to have their children removed and placed in foster care than their White counterparts. So in spite of the advances achieved since 1978, ICWA’s protections are still needed.”).
 See, e.g., Elizabeth Amon, Minneapolis Lawyers Rely on ‘Gold Standard’ Law to Keep Native American Families Together, Imprint (May 17, 2021), https://imprintnews.org/law-policy/minneapolis-lawyers-rely-on-gold-standard-law-to-keep-native-american-families-together/54527 [https://perma.cc/SSY4-KK3X] (“The challenges to ICWA brought in Brackeen were opposed by 486 federally recognized American Indian and Alaska Native tribes and 59 Native American organizations. Additionally, 26 states, 31 child welfare organizations and 77 members of Congress signed a statement of support for those defending ICWA.”).
 No. 21-376 (argued Nov. 9, 2022).
 See Brackeen v. Haaland, SCOTUSblog, https://www.scotusblog.com/case-files/cases/brackeen-v-haaland [https://perma.cc/QZ26-MDPQ].
 See Nancy Marie Spears, State Statutes Could Protect Families if Indian Child Welfare Act Is Overturned, Cronkite News (Dec. 28, 2021), https://cronkitenews.azpbs.org/2021/12/28/state-statutes-could-protect-families-if-indian-child-welfare-act-is-overturned [https://perma.cc/J3GG-VW3A] (explaining that if the Court holds ICWA unconstitutional for racial discrimination, state law equivalents would be vulnerable; whereas, if the court holds ICWA unconstitutional for violating anti-commandeering, state laws may stand).
 Mary Kunesh, Senator Mary Kunesh Celebrates House Passage of Her Bill to Strengthen Minnesota Indian Family Preservation Act, Minn. Senate DFL (Mar. 9, 2023), https://senatedfl.mn/senator-mary-kunesh-celebrates-house-passage-of-her-bill-to-strengthen-minnesota-indian-family-preservation-act [https://perma.cc/9ATS-L22H].
 Interview with Scott Buchanan, Staff Attorney, Fond du Lac Band of Lake Superior Chippewa (Mar. 17, 2023). Disclaimer: The author worked as a Law Clerk for Fond du Lac during the summer of 2022.
 Off. of Tribal Just., Frequently Asked Questions About Native Americans, U.S. Dep’t of Just., https://www.justice.gov/otj/about-native-americans [https://perma.cc/WG2Z-DTJ5] (“It is important to distinguish between the ethnological term ‘Indian’ and the political/legal term ‘Indian.’ The protections and services provided by the United States for tribal members flow not from an individual’s status as an American Indian in an ethnological sense, but because the person is a member of a Tribe recognized by the United States and with which the United States has a special trust relationship.”).
 25 U.S.C. § 1915(a)(2).
 See Kunesh, supra note 18.