On Wednesday, November 9, the Supreme Court heard oral arguments in Haaland v. Brackeen, a case challenging the Indian Child Welfare Act. Passed by Congress in 1978, ICWA establishes standards for the adoption of Native American children, by stipulating a preference that they be placed with extended family members or other Native American families. Opponents of ICWA say that exceeds Congress’ powers and violates the Equal Protection Clause of the 14th Amendment, by imposing unconstitutional race-based classifications and discriminating against non-Native American foster parents. Defenders of ICWA say the distinctions the law draw between Native and non-Native Americans are political, rather than racial, because tribes are political entities; and that the law helps protect tribal sovereignty and the cultural heritage of Native American children. Timothy Sandefur of the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and Elizabeth Reese of Stanford Law join Jeffrey Rosen to recap the arguments in the case and discuss the future of the Indian Child Welfare Act.
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This episode was produced by Melody Rowell and engineered by Greg Scheckler. Research was provided by Sophia Gardell, Liam Kerr, Emily Campbell, Kelsang Dolma, Sam Desai, and Lana Ulrich.
Participants
Timothy Sandefur is the vice president for legal affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government. He litigates important cases for economic liberty, private property rights, free speech, and other matters in states across the country. He is an adjunct scholar with the Cato Institute and is the author of several books, including Frederick Douglass: Self-Made Man, and Cornerstone of Liberty: Property Rights in 21st Century America.
Elizabeth Reese is a scholar of American Indian tribal law, federal Indian law, and constitutional law focusing on the intersection of identity, race, citizenship, and government structure. Professor Reese’s scholarship examines the way government structures, citizen identity, and the history that is taught in schools, can impact the rights and powers of oppressed racial minorities within American law. Her scholarship on tribal law, constitutional law, popular sovereignty, and voting rights law has been published in Stanford Law Review, University of Chicago Law Review, Cardozo Law Review, and Houston Law Review.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Listen to oral argument or read the transcripts at the Supreme Court’s website
- Read Timothy Sandefur’s amicus brief on behalf of Texas and the Brackeen family
- Read Greg Ablavsky’s amicus brief in support of the federal government and tribal defendants
Transcript
View the Transcript
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
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