By: Ryan Maxey

In September of last year, a petition for a writ of certiorari was filed before the Supreme Court in the case Brackeen v. Haaland, challenging the constitutionality of the Indian Child Welfare Act, or ICWA.1 ICWA was passed in 1978 to bring an end to decades of systematic removal of Native children from their families and communities through adoption and the foster care system.2 Prior to ICWA, studies from 1969 and 1974 showed that somewhere between 25 and 35 percent of Native children were removed from their homes and placed in foster care, generally with White families, breaking their ties to their tribe.3 ICWA instituted several reforms, giving tribes greater control over the custody process and creating a preference for Native children to be placed with Native families.4

This preference for keeping Native children within their communities is one of the central challenges the plaintiffs in Brackeen make against ICWA. They argue that this preferential treatment is in violation of the Equal Protection Clause of the Fourteenth Amendment, which states that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”5 By offering preferential treatment to native people, the argument goes, ICWA treats citizens differently based on categorization by race, and thus denies them equal protection.6

This goes against the long-standing principle of federal Indian law enumerated in Morton v. Mancari that “members of federally-recognized tribes” is a political group, not a racial one.7 Preferential treatment of tribal members has thus long been held as constitutional; by that standard alone, this portion of Brackeen’s complaint should straightforwardly fail. But how is it that the Fourteenth Amendment, passed during Reconstruction for “the amelioration of the condition of the freedmen” by rendering unconstitutional the “partial and oppressive laws” of southern states, could even theoretically be wielded as a weapon against ICWA, which similarly sought to “ameliorate” another oppressed people from the injustices of state law?8 The answer lies in modern Fourteenth Amendment jurisprudence and its misidentification of the evil the Equal Protection Clause sought to slay.

What does today’s Court believe the Equal Protection Clause does? The most revealing area of equal protection jurisprudence revolves around “affirmative action” cases, or cases in which the government has adopted policy that recognizes the existence of racial injustice and seeks to counter it. Consider Shaw v. Reno, Bush v. Vera, Regents of the University of California v. Bakke, Grutter v. Bollinger, Gratz v. Bollinger, Parents Involved v. Seattle School District No. 1, and Fisher v. University of Texas I and II.9 These cases all share a basic structure: a state or municipal government passes into law policy that grants some privilege to an oppressed racial group in order to undo some injustice (greater representation in congress in the cases of Shaw and Bush, school desegregation in Parents Involved, and college admissions in the others), a White plaintiff sues on equal protection grounds, and the case becomes a significant enough question to be heard before the Supreme Court of the United States.10 Not all of these challenges were successful, but several were, and that they were heard at all speaks to the perceived validity of the challenges posed.

Courts today understand the Equal Protection Clause to target not oppression based on race, but instead any government action that acknowledges the existence and effect of race in its policies.11 In doing so, they have transformed the Fourteenth Amendment from a shield against injustice into a bludgeon for the maintenance of the status quo. Handcuffing legislatures in their attempts to undo extant inequality can only serve to perpetuate that inequality.

Have the courts been forced down this road, or could there have been another path for Equal Protection jurisprudence to take? Consider if instead of merely examining whether a law hinges on some sort of classification, as if all classification of a certain mode is equally suspect (race, gender identity, religion, etc.) and applying the agreed-upon amount of scrutiny based on the type of the classification taking place, the law instead examined whether the persons advantaged or disadvantaged were groups who historically faced injustice under the rule of law, and whether the law at question appropriately rectified or worked to perpetuate that injustice. This idea, perhaps radical when laid in opposition to the Court’s current approach, is similar in character to that expressed by Justice John Paul Stevens in his concurrence in City of Cleburne v. Cleburne Living Center:

In every equal protection case, we have to ask certain basic questions. What class is harmed by the legislation, and has it been subjected to a “tradition of disfavor” by our laws? What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies the disparate treatment?12

473 U.S. 432, 473 (1985) (Stevens, J., concurring)

Imagine, briefly, how different the answers to those interrogatories would be compared to the reductive nature of the current test, which looks not at the class at issue, but rather what type of class it is, and assumes that historical context has no value. In such a world of jurisprudence, the challenge in Brackeen would not need to be defeated by Morton v. Mancari, because it would surely fail on its own terms.

Ryan (he/him) is a 2018 graduate of the University of Oklahoma with a B.A. in history and a 2L at the Sandra Day O’Connor College of Law at Arizona State University. His goal after graduation is to work as a public defender. His legal interests include critiques of American jurisprudence, prison abolition, and reinforcing indigenous sovereignty. In his spare time, he enjoys hiking, playing musical instruments, and playing, watching, and discussing basketball.