Supreme Court Considers Native American Preferences And Classifications

This month, the US Supreme Court heard oral argument in Brackeen v. Haaland, a case concerning the constitutionality of the federal Indian Child Welfare Act (ICWA). The challengers—individuals who sought to adopt Indian children and the state of Texas—present a broad array of objections to ICWA, including that it violates the Equal Protection component of the Fifth Amendment. The Supreme Court has long recognized that federal regulation of Indian affairs is based on permissible political classifications rather than impermissible racial ones. Nevertheless, the challengers seek to impose broad limits on the circumstances in which a federal law can permissibly single out Indians. If the Court were to adopt such limits, it would have drastic consequences for Congress's ability to fulfill its trust obligations to Indian tribes, and it likely would also have ramifications for universities, employers, and other entities that provide preferences or benefits to Native