Speakers: John Walsh, Felicia Ellsworth and Daniel Volchok
John Walsh: Welcome to In the Public Interest, a podcast from WilmerHale. I’m John Walsh.
Felicia Ellsworth: And I’m Felicia Ellsworth. John and I are partners at WilmerHale, an international law firm that works at the intersection of government, technology and business.
Walsh: Today’s episode is the latest installment of our new Supreme Court miniseries, where we dive into the most hotly contested decisions coming out of the court this term and discuss the implications of several of the court’s rulings going forward.
Ellsworth: For our second episode, we will be discussing the court’s recent decision in Haaland v. Brackeen, which concerns preferences for tribal families in the adoption of Native American children. Joining me to discuss this case is Daniel Volchok, a partner in WilmerHale’s Washington DC office who specializes in appellate litigation and has an extensive Native American law practice. Thank you so much Daniel for joining us on this episode of our Supreme Court miniseries.
Daniel Volchok: Good morning, Felicia. Thanks for having me.
Ellsworth: Let’s begin, Daniel, by talking a little bit about how this lawsuit got started. Can you give some background about what actually happened to set off the dispute in this case?
Volchok: Sure. So, the federal lawsuit arose from efforts by three couples to each adopt or foster a Native American child. None of the three couples were themselves Native Americans, and they each felt that their efforts to adopt or foster the Native child were hampered by a federal statute known as the Indian Child Welfare Act, or ICWA. So, the three couples, along with three states, Texas, Louisiana and Indiana, brought the federal lawsuit in Texas that went up to the Supreme Court to challenge the constitutionality of ICWA.
Ellsworth: Let’s talk about ICWA. Can you give some background on what the Act does, why it was passed?
Volchok: Sure. So, it was enacted in 1978 and it was a response to what was perceived to be what in fact was many, many years and decades of Native children being removed from their families and placed sometimes with non-Native families, sometimes in institutions, boarding schools, and it was seen as part of a larger effort to eliminate tribal culture, tribes, bands, and nations as separate entities. So, in response to this, ICWA does a number of things. It, first of all, vests exclusive jurisdiction over adoption and foster cases for Native children living on reservations in tribal courts. Now for Native children not living on a reservation, state courts and tribal courts retain concurrent jurisdiction, but the Act creates a number of procedural requirements, a number of rights to notice, and it creates placement preferences. So, the preference for a Native child who can’t live with his or her biological parents, the top preference is to live with members of their extended family if that’s a possibility, otherwise, members of their tribe, if that’s a possibility, members of other tribes and then a non-Native entities.
Ellsworth: Let’s move then to the Supreme Court’s consideration. What were the core issues relating to ICWA that the Supreme Court was presented with in this case?
Volchok: So, the plaintiffs ended up bringing four arguments to the Supreme Court, four reasons why they said ICWA violated the Constitution. The first, they said Congress just didn’t have the authority to enact this type of law regarding domestic relations, family relations—that is typically the province of states and not of the federal government. Challengers said that this overstepped Congress’s power under the Indian Commerce Clause of the Constitution. The second was that it violated the 10th Amendment, and in particular the challengers said it violated the anti-commandeering principle of the 10th Amendment. So, there are Supreme Court cases that say Congress cannot, for example, order state legislatures or state executive officials directly to enforce federal law or to do certain things, almost anything. The argument here was that state courts and states were being co-opted to enforce these preferences that I mentioned a few minutes ago in the statute and other aspects of federal law. The third was that it violates equal protection because the challengers were saying they were being disadvantaged in their efforts to adopt Native children because of their race and or the race of the Native children in violation of equal protection. And the fourth challenge was to the non-delegation doctrine. So, the Supreme Court said, back in the 30s, that Congress can’t give legislative power to other entities, and the challengers said that power that tribes were given to alter the placement preferences is a legislative power, and Congress could not delegate that power to tribes.
Ellsworth: Let’s turn to the Supreme Court’s decision here. Can you please tell us a little bit about how the Court addressed those various issues?
Volchok: The bottom line was that they rejected all of the challenges to ICWA. Now they didn’t address all of them on the merits as to two of the four categories—equal protection and non-delegation. They said that the plaintiffs lacked standing to press those challenges. The other two, the anti-commandeering arguments and the authority arguments, were rejected on the merits. And so let me just talk about each of the four. So, as to the Congress’s authority to enact ICWA, the Supreme Court basically said we have 200 years of pretty consistent precedent underscoring Congress’s very broad power when it comes to legislating in the area of tribes, bands and nations. And the Indian Commerce Clause says Congress shall have power to administer commerce with Indian tribes and the Supreme Court said we have read that for 200 years very broadly, essentially as giving Congress plenary power when it comes to Native American affairs. Now the court in this case went out of its way to say it’s very broad and we have said plenary, but plenary doesn’t mean unlimited. Nonetheless, we think it is surely broad enough to encompass what went on here. The other bucket that was addressed on the merits was the 10th Amendment, the anti-commandeering principles, and the Supreme Court broke those arguments down into a couple of further buckets. So, for example, the Supreme Court looked at the provisions that said if you’re trying to take a Native child away from his or her tribe, you have to show that you have made “active efforts”—that’s the phrase in the statute—to keep the child with tribal members if possible. And the challengers had said that violates the anti-commandeering principle and orders state officials to engage in these active efforts. The Supreme Court’s response was that under the court’s anti-commandeering cases, if a federal statute could apply equally to private parties and to states, then it doesn’t violate the 10th Amendment. The last thing the Supreme Court said—and this also goes back to some of the procedural requirements about notice to parents, notice to tribes and opportunity to participate—the challengers had said that’s too intrusive to state courts, it’s federal courts directing state courts how to run their state court proceedings. And the Supreme Court pretty much brushed past this and said that’s really just the supremacy clause in operation. The federal government can say federal causes of action have these contours and these requirements and state courts have to enforce those when those federal causes of action are brought. So, those were the two categories that were dealt with on the merits, and then there were the two other categories I mentioned that were dealt with on standing grounds. And what the Supreme Court said as far as the equal protection and standing, first, it dealt with the individual plaintiffs separately from the state. So, as to the parents, the Supreme Court said that they had sued the wrong defendants, so they sued federal officials only, but the Supreme Court said ICWA is actually enforced and implemented in state courts by state officials and you, the individual plaintiffs, didn’t sue any state officials. And then as to the states, the Supreme Court basically said the state doesn’t have its own equal protection rights, and it can’t be coming in here in defense of the equal protection rights of its citizens, those citizens have the ability to bring the lawsuit themselves. And then very quickly the state just dealt with the non-delegation issue, saying because you aren’t being harmed by these placement preferences, you also aren’t harmed by the placement preferences or the ability that the ICWA gives to tribes to determine placement preferences. So, the bottom line here was that ICWA is held, at least for now, subject to later challenges by plaintiffs who have standing held to be constitutional.
Ellsworth: Should defenders of Native American rights be heartened by this decision, or is there more to come on this on the equal protection front, in particular? And I’m thinking about Justice Kavanaugh’s concurrence here in asking this question.
Volchok: So, Justice Kavanaugh thought there were serious equal protection problems with ICWA and with its placement preferences. So, yes, there is certainly some cause for concern. Now there is also much cause for celebration in Native communities. It would have been very, very destructive and damaging to tribes, bands and nations, Native cultures, and the ability of nations to preserve their cultures and their separateness for the Supreme Court to have struck down ICWA, and it could have called all sorts of other tribal-related statutes, federal statutes, into question. So, all sorts of things were at least potentially at risk. Now, the decision here essentially maintained the status quo, so it was not breaking new ground in terms of expanding federal power or providing new benefits to tribes, bands and nations. But yes, it certainly was a big victory in the Supreme Court for supporters of Native American rights.
Ellsworth: And let’s talk briefly about Justice Gorsuch’s emerging role, or maybe existing role, as kind of a defender of Native American rights, or at least the court’s self-appointed expert on this topic. I know he also wrote an interesting and lengthy concurrence, if you could comment on that.
Volchok: He did, and he added an awful lot of context in terms of the background for ICWA, all of the horrors that were visited for many years on tribes, bands and nations and yes, he really has emerged as the strongest defender, perhaps by far on the Supreme Court, of tribal rights, and it led to a brief period on the Supreme Court when it seemed there were five solid votes for Native issues, in general. That changed when Justice Ginsburg died and was replaced by Justice Amy Coney Barrett. Justice Barrett remains a little bit of an unknown—she authored the opinion here, which is a tremendous victory for tribal rights, but she has in other cases voted against tribal interests. So, Justice Gorsuch remains the bright spot, at least from the perspective of proponents of Native American rights and Native American law. It’s not 100% clear where this comes from, other than his service on the Tenth Circuit, he served on the Court of Appeals for the Tenth Circuit for several years before being elevated to the Supreme Court, and the Tenth Circuit covers states like Wyoming, New Mexico and others that have very large Native American populations. So, he dealt with quite a number of Native American cases. He has very deep understanding of the history, of the background of exactly how we got to this place on a lot of Native American issues, and it shows up in his opinions time after time.
Ellsworth: Can you tell us a little bit about WilmerHale’s involvement in this case?
Volchok: Sure. So, WilmerHale filed an amicus brief in the Supreme Court on behalf of 87 members of Congress defending in full the constitutionality of the statute.
Ellsworth: So, this Brackeen case is, I think, rightfully viewed as a major win for defenders of Native American rights. But there were other cases this term decided by the court also on the topic of Native American rights. And I wonder if you can describe those decisions just briefly and let us know if you’re seeing any trends here on how the court is addressing these issues.
Volchok: Yeah, so there were two other Native American cases. In both of those cases, the tribe, or the tribal interests, lost. One of them was Arizona v. Navajo Nation. It was basically a dispute involving a treaty from the 19th century between the United States and the Navajo, and the question was what exactly were the United States’ obligations under that treaty as far as ensuring the availability of sufficient water to the nation on its reservation? And the Supreme Court, by 5 to 4, ruled that the United States did not have an obligation to make active efforts to secure sufficient water for the Navajo Nation. And again, Justice Gorsuch was in the lead on the dissent. The third case was about bankruptcy, so the question there was whether tribes are immune from the automatic stay that goes into place whenever somebody files for bankruptcy. It’s very clear from the Bankruptcy Act that that applies even to United States, it applies even to the other entities that have sovereign immunity. And the question was does it also apply to tribal entities who have their own form of immunity? And this time the court ruled 8 to 1 that it did encompass tribes. So, as far as trends, I think it indicates that there’s uncertainty as far as the Supreme Court’s approach to Native issues, because Justice Barrett is still a little bit finding her way. And by and large, there are otherwise four relatively reliable votes for tribal interests—that is the three Democratic appointees and Justice Gorsuch. So, the trend to the extent there is one is that it is not clear exactly how the court will come out on a lot of tribal issues, which just creates enormous uncertainty from tribes’ perspective in terms of whether there’s a desire to try to get certain issues up to the Supreme Court or maybe rather try to keep them in the lower courts to the extent possible.
Ellsworth: And what are you seeing in the lower courts, Daniel, in terms of some other issues that may be percolating up to the Supreme Court that involve tribal rights?
Volchok: Yeah, Castro-Huerta v. Oklahoma, which was a follow-on case itself to McGirt v. Oklahoma, involved essentially the extent to which the states can be involved in regulating tribes, bands and nations, and in particular prosecuting offenses committed sometimes on the reservation or sometimes against Native Americans. And there’s just a lot of ongoing fallout from those decisions. It’s constant ongoing battle about how much states can regulate tribes within the states’ boundaries, and you see this not only in law enforcement and prosecutions, but in the gaming area, which is an area which tribes have been quite prominent in recent decades, trying to generate revenue for tribes that otherwise have so much difficulty generating revenue. So, I would say the ongoing relationship between the tribes and the states as far as states’ ability to regulate tribes in different ways is one of the biggest ongoing issues following all of these cases that we’ve gotten from the Supreme Court.
Ellsworth: Well, more to come on that, to be sure. Thank you so much, Daniel, for joining us today and speaking with us about this important topic. We appreciate your time.
Volchok: My pleasure. Good to be with you.