Equal Protection Challenges to Federal Indian Laws The United States Constitution acknowledges that “Indian Tribes” are separate distinct governments, that “Indians” were citizens of these governments, that Treaties – including those entered between the United States and Tribal Governments – are the “supreme Law of the Land”. Despite this clear expression of Indian Tribes as separate political entities, anti-Tribal sovereignty groups have increased constitutional challenges to federal laws designed to meet the government’s obligations to Indian Country as being race-based in violation of the Constitution’s Equal Protection Clause. These claims ignore the text of the United States Constitution and well-settled case law. The most high-profile of these cases are Haaland v. Brackeen , which involved the Indian Child Welfare Act, and the Maverick Gaming and West Flagler cases challenging the validity of the Indian Gaming Regulatory Act. Similar questions were raised nearly a half century ago in the Supreme Court’s Morton v. Mancari decision. Mancari held that federal laws relating to Indian Tribes are based upon a political or governmental classification – not racial classifications. Thus, such laws are subject to “rational basis” as opposed to “strict” scrutiny. Mancari reasoned that a federal Indian affairs-related law “will not be disturbed” in the face of an equal protection challenge, “As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians.” Over the past five decades, the Supreme Court and dozens of lower federal courts have consistently upheld the model of the Mancari decision when examining challenges to the constitutionality of federal laws designed to impact Indian Tribes. Despite the well-settled precedent, the renewed interest in claiming that federal Indian affairs laws are race-based were emboldened by the Court’s recent trend of ignoring or overruling its own long- standing decisions. The Court’s June 2022 decision Oklahoma v. Castro-Huerta is one example in which it ignored two centuries of precedent, turning the foundational principle that state laws have no effect on Indian lands, unless expressly authorized by an Act of Congress, on its head. The two highest profile legal challenges involve the Indian Child Welfare Act (ICWA) and the Indian Gaming Regulatory Act (IGRA). The anti-Tribal Government challengers urge the courts to ignore the Supreme Court’s Mancari decision and the model that it established regarding statutory review of laws relating to Indian Tribes. On June 15, 2023, the Supreme Court, in Haaland v. Brackeen , rejected most of the dubious legal attacks on ICWA. In a resounding 7-2 decision, the Court upheld the constitutionality of ICWA. The majority opinion, authored by Justice Amy Coney Barrett, rejected arguments that questioned Congress’ Article I power to enact ICWA, as well as a claim that ICWA violated the Anti- Commandeering Doctrine. The Brackeen decision, however, did not decide the question of whether ICWA violated the Constitution’s Equal Protection Clause on the merits. The Court rejected the petitioner’s argument on grounds that they did not have standing to raise the claim. As a result, the equal protection question remains open to a future legal challenge, one which Justice Brett Kavanaugh characterized as a “serious” and “significant question under bedrock equal protection principles.” As a result, the equal protection claim remains a threat. The law firm representing the parents in the Brackeen case are the same legal minds behind the constitutional attacks on IGRA in Maverick Gaming, LLC v. United States, et al . This is no coincidence. This is no ordinary law firm that represents mom and pop shops - they do not specialize in child custody disputes. The firm took the Brackeen case pro bono – not to serve the best interests of a child, but to lay groundwork for their attack in Maverick as part of a long-standing and coordinated attempt to undermine Tribal sovereignty. As the Native American Rights Fund stated, “This was never a case
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