Last Spring, the United States Supreme Court reaffirmed the constitutionality of the Indian Child Welfare Act (“ICWA”) with a 7-2 decision in Brackeen v. Haaland. The majority opinion in that case, written by Justice Barrett, discussed Congress’s plenary power over Indian affairs and held that ICWA was lawfully created pursuant to those powers. The Court also rejected claims regarding anti-commandeering principles and ICWA’s placement preferences, but it failed to reach the petitioners’ equal protection challenge—that ICWA impermissibly discriminated on the basis of race—due to lack of standing.

In a concurring opinion, however, Justice Kavanaugh emphasized that the equal protection question was still undecided. He considered the issue to be “serious” and stated that the Supreme Court would be able to address the issue if “properly raised by a plaintiff with standing—for example, by a prospective foster or adoptive parent or child in a case arising out of a state-court foster care or adoption proceeding.”

One set of potential plaintiffs is Kellie and Nathan Reyelts, Minnesota foster parents who were unable to adopt Native American twins who the Reyelts had fostered. Pursuant to ICWA and the Minnesota Indian Family Preservation Act (“MIFPA”), the twins, who were either enrolled or eligible to be enrolled with the Red Lake Band of Chippewa Indians, were placed with their relative, who was also enrolled with the Red Lake Nation. The Reyelts took their case, which alleged that both ICWA and MIFPA violated equal protection, to the Minnesota Court of Appeals.

In June of 2024, In the Matter of L.K. and A.S, the Minnesota Court of Appeals held that MIFPA did not violate equal protection, though it remanded the case because, among other things, the trial court erred by denying the Reyelts’ motion to intervene. Regarding the equal protection challenge, the Minnesota Court of Appeals explained that legislation benefiting Indian Tribes generally receives only rational basis review because classifications benefiting Indian tribes are political, rather than racial, classifications. The Minnesota Court of Appeals further stated that, because MIFPA serves the interests of Indian Tribes, it did not constitute racial discrimination, and the case was remanded for further proceedings.

Mark Fiddler, the Reyelts’ attorney, expected the Minnesota Court of Appeals’ equal protection conclusion, stating that he “had no illusions that an intermediate state appellate court would strike down a federal law. . . . But we had to challenge ICWA at this level to seek higher review.” Fiddler is no stranger to challenging ICWA at the appellate level; he represented ICWA challengers in both Brackeen and the 2013 United Stated Supreme Court case Adoptive Couple v. Baby Girl.

Since the Minnesota Court of Appeals’ ruling, the parties have briefed and argued the constitutionality of ICWA and MIFPA before the Minnesota Supreme Court. At Oral Argument, which occurred in late September, the Minnesota Supreme Court appeared unsure as to the Reyelts’ standing to challenge ICWA and MIFPA. If the Minnesota Supreme Court decides the case on standing, and avoids ICWA and MIFPA’s constitutionality, this may affect what the United States Supreme Court has the opportunity to decide on appeal.

Nevertheless, the Reyelts’ challenge to ICWA and MIFPA shows that, despite the Supreme Court’s ruling in Brackeen, ICWA is still under threat. As Justice Kavanaugh noted, the United States Supreme Court will, at some point, have the opportunity to determine whether ICWA’s placement preferences constitute racial discrimination. If the Court concludes that they do, it could be a turning point for Federal Indian legislation. Under the United State Supreme Court case Morton v. Mancari, preferences for Native American individuals, tribes, and entities have traditionally been upheld as political, rather than racial, classifications. But a decision that ICWA constitutes unlawful racial discrimination, rather than a political classification, will almost certainly require limiting or reversing Mancari, opening the path for other legislation to be challenged as racial discrimination.

If the Court reverses or limits Mancari, courts across the country could begin to find that other preferences benefiting Native Americans and Alaska Natives constitute unconstitutional racial discrimination. For example, Alaska Native Corporations’ qualification as socially and economically disadvantaged entities, which allows them to compete for set aside government contracts and receive other government contracting benefits, could be challenged as a form of racial favoritism. Likewise, statutes such as 43 U.S.C. § 1626(g) and 42 U.S.C. § 2000e-2(i), which exempt Alaska Native Corporations and Tribal Entities from certain Title VII requirements, could also be struck down as racial preferences.

While it will take time for any ICWA cases to wind their way up to the Supreme Court, there is no doubt that they will. Whatever the Supreme Court decides, the Court’s decision may impact far more than ICWA’s validity alone.

This article summarizes aspects of the law and opinions that are solely those of the authors. This article does not constitute legal advice. For legal advice for your situation, you should contact an attorney.