Case No. A23-1762__________________________________________________________________
STATE OF MINNESOTAIN SUPREME COURT__________________________________________________________________In Re the Matter of the Children of:
L.K., Parent.
__________________________________________________________________
BRIEF OF AMICI CURIAE
CALIFORNIA TRIBAL FAMILIES COALITION, UNITED SOUTH AND
EASTERN TRIBES SOVEREIGNTY PROTECTION FUND,
ASSOCIATION OF AMERICAN INDIAN AFFAIRS,NATIONAL CONGRESS OF AMERICAN INDIANS,
NATIONAL INDIAN CHILD WELFARE ASSOCIATION,
AND NAVAJO NATION IN SUPPORT OF DISMISSAL__________________________________________________________________
Joseph F. Halloran (#244132)
Christopher Smith (#0504495)
THE JACOBSON LAW GROUP
180 East Fifth Street, Suite 940
St. Paul, MN 55101
Phone: (651) 644-4710

Mark D. Fiddler (#197853)
Rachel L. Osband (#0386945)
12800 Whitewater Drive, Suite
100
Minnetonka, MN 55343
Phone: (612) 822-4095

Sydney Tarzwell (pro hac vice)
NATIVE AMERICAN RIGHTS FUND
745 W 4th Avenue, Suite 502
Anchorage, AK 99501
Phone: (907) 276-0680

Timothy Sandefur (pro hac vice)
500 E. Coronado Rd.
Phoenix, AZ 85004
Phone: (602) 462-5000

Beth M. Wright
NATIVE AMERICAN RIGHTS FUND
250 Arapahoe Avenue
Boulder, CO 80302(303) 447-8760
wright@narf.org

Attorneys for Appellants

Morgan E. Saunders
NATIVE AMERICAN RIGHTS FUND
950 F Street, NW, Suite 1050
Washington, D.C. 20004(202) 785-4166
saunders@narf.org

Attorneys for California Tribal
Families Coalition et al.

Joseph Plumer (#164859)
Riley Plumer (#0399379)
9352 N Grace Lake Rd SE
Bemidji, MN 56601
Phone: (218) 556-3824
Tammy J. Swanson (#0231939)
3120 Woodbury Drive, #200
Woodbury, MN 55125
Phone: (651) 739-9615

Attorneys for Red Lake Nation
Ryan A. Gustafson (#0392220)
117 West 5th Street
P.O. Box 95
Blue Earth, MN 56013
Phone: (507) 526-2177

Attorney for L.K., Mother
Amanda L. Heinrichs-Milburn(#0400393)
123 Downtown Plaza
Fairmont, MN 56031
Phone: (507) 238-1594

Attorney for Martin County Human
Services Department
Anna Veit-Carter (#0392518)
Elizabeth Kramer (#0325089)
Kaitrin Vohs (#0392518)
445 Minnesota Street, Suite 1100
St. Paul, MN 55101-2128
Phone: (651) 757-1324

Assistant Attorneys GeneralState of Minnesota

Jody M. Alholinna (#284221)
Minnesota Judicial Center
Suite G-27
25 Rev. Dr. Martin Luther King, Jr.
Blvd.
St. Paul, MN 55155
Phone: (612) 408-3359
Robert C. Roby (#0225721)
237 SW 2nd Ave, Suite 222
Cambridge, MN 55008
Phone: (763) 689-5069
Krystal Swendsboe (pro hac vice)
Isaac J. Wyant (pro hac vice)2050 M Street NW
Washington, D.C. 20036
Phone: (202) 719-7000

Attorneys for Christian Alliance for
Indian Child Welfare

m boulette (#0390962)
Seungwon R. Chung (#0398315)
Abby N. Sunberg (#0402839)
80 South Eighth Street, Suite 2200
Minneapolis, MN 55402
Phone: (612) 977-8603

Attorneys for Guardian ad Litem
Crystal Pardue (pro hac vice)
125 Broad Street, 17th Floor
New York, NY 10004
Phone: (206) 584-4039

Mallory K. Stoll (#0393367)
Natalie Netzel (#0397316)
875 Summit Ave. Room 254
St. Paul, MN 55105
Phone: (651) 290-8653

Attorneys for Institute to Transform
Child Protection
Brook Beskau Warg (#0400817)
525 Portland Avenue S., Suite 1000
Minneapolis, MN 55415
Phone: (612) 348-3791

Attorney for American Civil Liberties
Union Foundation

Attorney for Hennepin County Adult
Representation Services

Sarah Stahelin (#0316118)
190 Sailstar Drive NW
Cass Lake, MN 56633
Phone: (218) 335-3514

Teresa Nelson (#0269736)
Catherine Ahlin-Haverson (#350473)
Dan Shulman (#0100651)
P.O. Box 14720
Minneapolis, MN 55414
Phone: (651) 645-4097

Attorney for Leech Lake Band of Ojibwe Attorneys for American Civil
Liberties Union of Minnesota

TABLE OF CONTENTSTABLE OF AUTHORITIES ................................................................................ ii
INTRODUCTION AND INTERESTS OF AMICI CURIAE .............................. 1
STATEMENT OF FACTS ................................................................................... 3
ARGUMENT ........................................................................................................ 6
I. This Court Should Reject Appellants’ Constitutional Challenge
to ICWA Because it Was Not Addressed by the Courts Belowand Because Appellants Lack Standing ..................................................... 6
A. This Court Should Not Address ICWA’s Constitutionality when
Neither of the Courts Below Ruled on the Issue ................................... 7
B. Appellants Lack Standing to Challenge ICWA’s Constitutionality ..... 8
i. Appellants Have No Legally Protected Interest in theConstitutional Rights of Others. ......................................................... 8
ii. Appellants Have Not Been Injured by ICWA’s Preference
for Native Foster Homes .................................................................. 10
II. ICWA Complies with the Constitution’s Equal Protection
Requirements.............................................................................................. 13
A. Equal Protection Analysis Involves Two Distinct Steps ..................... 13
B. Two Political Relationships Serve as the Basis for Tribal Nations
and Native People’s Unique Political Status under U.S. Law ............ 14
i. The Unique Political Relationship Between the United States
and Tribal Nations is Predicated on Tribal Nations’ Inherent
Sovereignty, Long-Standing, and Enshrined in the Constitution .. 15
ii. The Relationship Between Tribal Nations and their People is
Political, not Racial............................................................................ 19
C. The U.S. Supreme Court Has Held that Government Action
Directed at Tribal Nations and Native People Creates a Political
Classification Subject to Rational Basis Review ................................. 20
D. As ICWA Is Grounded in Both Political Relationships, Its
Classifications are Political .................................................................. 23i

i. ICWA Applies Only to Children Who Have Political
Relationships with Their Tribal Nations ......................................... 24
ii. ICWA is an Outgrowth of the United States’ Political
Relationship with Tribal Nations ..................................................... 27
E. ICWA Satisfies the Rational Basis Test Applicable to Political
Classifications ........................................................................................ 28
CONCLUSION ................................................................................................... 29
CERTIFICATION OF COMPLIANCE ............................................................. 31

TABLE OF AUTHORITIES
Cases

Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ...................................................................................... 13, 14
Brackeen v. Haaland,
994 F.3d 249 (5th Cir. 2021) ............................................................................. 26

Del. Tribal Bus. Comm. v. Weeks,
430 U.S. 73 (1977) .............................................................................................. 23
Garica-Mendoza v. 2003 Chevy Tahoe,
852 N.W.2d 659 (Minn. 2014) ............................................................................. 8
Haaland v. Brackeen,
599 U.S. 255 (2023) .................................................................................... passim
Haaland v. Brackeen, Brief of Casey Family Programs et al.,Nos. 21-376, 21-377, 21-378, 21-380, 2022 WL 3648364 (Aug. 19, 2022) ......... 9

Herrera v. Wyoming,
587 U.S. 329 (2019) ............................................................................................ 16
In re Senty-Haugen,
583 N.W.2d 266 (Minn. 1998) ............................................................................. 7
KG Urban Enters., LLC v. Patrick,693 F.3d 1 (1st Cir. 2012) .................................................................................. 23
Lott v. Davidson,
109 N.W.2d 336 (Minn. 1961) ......................................................................... 7, 9ii

Mass. Bd. of Retirement v. Murgia,
427 U.S. 307 (1976) ............................................................................................ 14
Matter of Welfare of E.G.,
268 N.W.2d 420 (Minn. 1978) ........................................................................... 12

McClanahan v. State Tax Comm’n of Arizona,
411 U.S. 164 (1973) ............................................................................................ 17
Means v. Navajo Nation,
432 F.3d 924 (9th Cir. 2005) ............................................................................. 23
Michigan v. Bay Mills Indian Cmty.,
572 U.S. 782 (2014) ............................................................................................ 15
Miss. Band of Choctaw Indians v. Holyfield,
490 U.S. 30 (1989) .......................................................................................... 2, 29
Morton v. Mancari,
417 U.S. 535 (1974) .................................................................................... passim
Paulson v. Lapa, Inc.,
450 N.W.2d 374 (Minn. 1990) ............................................................................. 9
Peyote Way Church of God, Inc. v. Thornburgh,
922 F.2d 1210 (5th Cir. 1991) ........................................................................... 22
Romer v. Evans,
517 U.S. 620 (1996) ............................................................................................ 14
Santa Clara Pueblo v. Martinez,
436 U.S. 49 (1978) ........................................................................................ 15, 20

Seminole Nation v. United States,
316 U.S. 286 (1942) ............................................................................................ 17
State, Dep’t Health & Soc. Servs. v. Native Village of Curyung,151 P.3d 388 (Alaska 2006) ............................................................................... 10
Thiele v. Stich,
425 N.W.2d 580 (Minn. 1988) ............................................................................. 7
United States v. Antelope,
430 U.S. 641 (1977) .......................................................................... 18, 19, 22, 23
United States v. Cohen,
733 F.2d 128 (D.C. Cir. 1984) ............................................................................ 22
United States v. Forty-Three Gallons of Whiskey,
93 U.S. 188 (1876) .............................................................................................. 16
United States v. Holliday,
70 U.S. 407 (1865) .............................................................................................. 17iii

United States v. Lara,
541 U.S. 193 (2004) ...................................................................................... 15, 17
United States v. Wheeler,
435 U.S. 313 (1978) ............................................................................................ 15
United States v. Wilgus,
638 F.3d 1274 (10th Cir. 2011) ......................................................................... 23
Washington v. Confederated Bands and Tribes of Yakima Indian Nation,
439 U.S. 463 (1979) ............................................................................................ 23
Washington v. Wash. State Com. Passenger Fishing Vessel Ass’n,
443 U.S. 658 (1979) ...................................................................................... 16, 23
Worcester v. Georgia,
6 Pet. 515 (1832) ................................................................................................ 15
Constitutions
U.S. CONST., art. I, § 2, cl. 3 ............................................................................ 17-18
U.S. CONST., art. I, § 8, cl. 3 ................................................................................. 17
U.S. CONST., art. II, § 2, cl. 2 ................................................................................ 17
U.S. CONST., art. IV, § 3, cl. 2 ............................................................................... 17
U.S. CONST., amend. V.......................................................................................... 13
U.S. CONST., amend. XIV ..................................................................................... 13
POARCH BAND OF CREEK INDIANS CONST., art. I, § 1(B)(3) ................................. 25
PUEBLO OF LAGUNA CONSTITUTION, art. VII, § 2 ................................................ 19
WYANDOTTE NATION CONST., art. 5, § 5............................................................... 25
StatutesFederal Statutes
25 U.S.C. § 1301(2) ............................................................................................... 18
25 U.S.C. § 1304(b)(1) ........................................................................................... 19
25 U.S.C. § 1901(1) ............................................................................................... 28
25 U.S.C. § 1901(2) ............................................................................................... 27
25 U.S.C. § 1901(3) ......................................................................................... 27, 29
25 U.S.C. § 1901(4) ............................................................................................... 27
25 U.S.C. § 1901(5) ............................................................................................... 27iv

25 U.S.C. § 1902 ................................................................................................ 2, 27
25 U.S.C. § 1903(4) ......................................................................................... 23, 24
25 U.S.C. § 1915(b) ........................................................................................... 4, 10
25 U.S.C. § 1915(b)(i) .................................................................................... 4, 10
25 U.S.C. § 1915(b)(ii) ....................................................................................... 1125 U.S.C. § 1915(b)(iii)...................................................................................... 1125 U.S.C. § 1921 ...................................................................................................... 7
Coronavirus Preparedness and Response Supplemental Appropriations Act,
Pub. L. No. 116-123, 134 Stat. 147 (2020) ........................................................ 18
Treaty of Fort Pitt with the Delaware Nation, art III, Sept. 17, 1778,
7 Stat. 13 ............................................................................................................ 27
State Statutes
Minn. Stat. § 259.23, subdiv. 2(h) ................................................................... 11-12
Minn. Stat. § 260C.001, subdiv. 2(b)...................................................................... 4
Minn. Stat. § 260C.001, subdiv. 2(b)(7) ................................................................. 5
Minn. Stat. § 260C.001, subdiv. 2(b)(7)(i)............................................................ 12
Minn. Stat. § 260C.212, subdiv. 2(a)................................................................ 4, 11
Minn. Stat. § 260.773 subdiv. 3........................................................................ 4, 10
Minn. Stat. § 260.773, subdiv. 10(2) ...................................................................... 4
Tribal Code
Citizenship Code of the Lac Courte Oreilles Band of Lake Superior
Chippewa Indians, Ch. CTZ. 1 .......................................................................... 19
Foreign Statutes
Act No. 91 of 1992 (Law No. 91/92) (Italy) .......................................................... 20
Irish Nationality and Citizenship Act 1956, § 7(2) (Ireland) ............................. 20
Polish Citizenship Act of 1920, arts. 2, 11 (Poland) ............................................ 20
Polish Citizenship Act of 1951, arts. 9, 11 (Poland) ............................................ 20
Polish Citizenship Act of 1962, arts. 6, 7 (Poland) .............................................. 20v

Regulations
25 C.F.R. § 83.11(e) (2015) ................................................................................... 20
25 C.F.R. § 83.2(a) (2015) ..................................................................................... 18
Legislative Materials
140 Cong. Rec. S6145............................................................................................ 18
H.R. Con. Res. 331, 100th Cong. (1988)............................................................... 18
H.R. REP. NO. 103-781 (1994) .............................................................................. 18
Books and Periodical Materials
American Law Institute, RESTATEMENT OF THE LAW OF AMERICAN INDIANS,
Ch. 1 § 4 (2021) .................................................................................................. 17
Daniel I.S.J. Rey-Bear & Matthew L.M. Fletcher, We Need Protection From

Our Protectors: The Nature, Issues, and Future of the Federal Trust
Responsibility to Indians,
6 Mich. J. Env’t & Admin. L. 397 (2017) .................................................... 15-16
Matthew L.M. Fletcher, The Original Understanding of the Political
Status of Indian Tribes,
82 St. John’s L. Rev. 153 (2008) ........................................................................ 16
Peter J. Spiro, A New International Law of Citizenship,
105 Am. J. Int’l L. 694 (2011) ............................................................................ 20
Other
Red Lake Band of Chippewa Indians, Child Application for Enrollment(last revision Jan. 13, 2020) https://www.redlakenation.org/wpcontent/uploads/2020/01/2020-Application-Child.pdf ...................................... 25vi

INTRODUCTION AND INTERESTS OF AMICI CURIAE1

Amicus California Tribal Families Coalition is an Indian organization
with members including nearly 50 federally recognized sovereign Tribal Nations
and three statewide tribal leader associations from across California that works
to promote and protect the health, safety, and welfare of tribal children andfamilies, actions which are inherent tribal governmental functions and are at
the core of tribal sovereignty. Amicus United South and Eastern Tribes
Sovereignty Protection Fund is a nonprofit inter-Tribal organization advocating
on behalf of 33 federally recognized Tribal Nations from the Northeastern
Woodlands to the Everglades and across the Gulf of Mexico. Amicus Association
on American Indian Affairs (“AAIA”), formed in 1922, serves Native Country byprotecting sovereignty, preserving culture, educating youth, and building
capacity; AAIA was integral to the Indian Child Welfare Act’s (“ICWA”)
development and continues to fight for ICWA today. Amicus National Congressof American Indians is a nonprofit American Indian and Alaska Native
organization serving as a unified voice for the broad interests of tribal
governments and communities. Amicus National Indian Child Welfare

1

Amici certify that none of the Parties’ counsel authored this brief in whole orin part or contributed money that was intended to fund preparing or submitting
this brief, and no person—other than Amici, their members, or their counsel—
contributed money that was intended to fund preparing or submitting this brief.
Minn. R. Civ. App. P. 129.
1

Association is a nonprofit organization that works to support the safety, health,and spiritual strength of American Indian and Alaska Native children along thebroad continuum of their lives. Amicus Navajo Nation is a sovereign federally
recognized Tribal Nation with two ratified treaties with the United States. As asovereign government, the Navajo Nation has an interest in supporting its
children and families, and thus was an intervenor defendant in Haaland v.

Brackeen, 599 U.S. 255 (2023), in which the United States Supreme Court
upheld ICWA’s constitutionality.

Amici share an interest in protecting the best interests of Native children
and promoting the stability and security of Native families and Tribal Nations.

Cf. 25 U.S.C. § 1902. Amici value ICWA as creating minimum federal standards
designed to halt the “wholesale removal” of Native children from their homes
and communities. See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30,
32 (1989). As such, Amici have a vital interest in defending ICWA against
misguided attacks like this one, which fundamentally misconstrues equal
protection and federal Indian law, and attempts to invalidate ICWA entirely bytaking aim at a portion of the law that did not affect Appellants. Amici also havea vital interest in defending the constitutionality of the United States’ delivery
on its long-standing trust and treaty obligations to Tribal Nations and Native
people, which would be imperiled should Appellants’ arguments find purchase.

2

Amici urge this Court to dismiss this appeal on the grounds that ICWA’s
constitutionality is not properly before this Court and Appellants lack standing
to challenge a law that did not injure them. In the alternative, Amici urge thisCourt to reject Appellants’ foundation-shaking constitutional arguments andhold that ICWA is grounded in the political relationships between Tribal
Nations—as sovereign governments—and their people, and between the UnitedStates and Tribal Nations, and thus ICWA is directed at Native people becauseof their political status. This Court should further hold that ICWA is rationallyrelated to fulfilling the United States’ unique and solemn obligations to Native
people and Tribal Nations.
STATEMENT OF FACTS
Ki.K. and Kh.K. are twins, born in April 2022, who are eligible forcitizenship in the Red Lake Nation (“Nation”), a federally recognized Tribal
Nation. See Respondent L.K.’s Addendum (“Resp. L.K. ADD.”) 003, 004; Resp.
L.K. ADD.041 (Reyes, J., concurring). Ki.K. and Kh.K.’s mother, L.K., is a citizenof the Nation. Appellants’ Addendum at ADD.002.
L.K. used harmful substances while she was pregnant with Ki.K. and
Kh.K., and the twins were born with significant medical issues. Resp. L.K.
ADD.003–004. Almost immediately after the twins’ birth, County Human
Services filed Child in Need of Protection and Services (“CHIPS”) petitions for
Ki.K. and Kh.K. and removed them from L.K.’s custody. Id. The ultimate goal of3

a CHIPS proceeding is to safely reunite children with their family of origin. See
Minn. Stat. § 260C.001, subdiv. 2(b). The Nation has been involved in the CHIPS
proceeding from the beginning to advocate for Ki.K. and Kh.K.’s best interests.

See Resp. L.K. ADD.004.
The Nation identified a relative, R.F., as a preferred placement for thechildren. R.F. also had the meaningful benefits of being a licensed foster parent
who resides on the Nation’s reservation and is the legal custodian of Ki.K. and
Kh.K.’s sibling. Resp. L.K. ADD.005; Resp. L.K. ADD.041 (Reyes, J., concurring).
The children were initially placed with Appellants—non-relative, non-Indian
licensed foster parents who lived closer to the Mayo Clinic—due to the children’s
immediate medical needs. Resp. L.K. ADD.004.
By August 2022, the children’s health had improved, and the guardian adlitem believed there was no longer a need to keep them near the medical facility
and thus out of an ICWA-preferred placement. Br. of Resp’t Guardian Ad Litem
McKenzie Borth at 5. Under ICWA, 25 U.S.C. § 1915(b)(i), and the Minnesota
Indian Family Preservation Act (“MIFPA”), Minn. Stat. § 260.773, subdiv. 3,
there is a legal preference for placing children in foster care with relatives,
rather than in non-relative foster homes, absent “good cause” to do otherwise,
25 U.S.C. § 1915(b); Minn. Stat. § 260.773, subdiv. 10(2). Minnesota Statutes
section 260C.212 subdivision 2(a)—which applies to all children, regardless of4Native2 status—also prioritizes consideration of relative placements before allothers.
By fall 2023, a plan to reunite Ki.K. and Kh.K. with relatives throughplacement in R.F.’s home was moving forward. Resp. L.K. ADD.005. L.K.’s
parental rights remained intact, the placement was for foster care—not
adoption—and the goal of the proceedings continued to be reunification with thechildren’s mother, see Minn. Stat. § 260C.001, subdiv. 2(b)(7).
On September 12, 2023, Appellants filed an emergency motion requesting
permissive intervention in the CHIPS case, a stay in the change of placement,
and—among other things—declaratory judgments that both ICWA and MIFPA,
broadly, violate the U.S. Constitution’s guarantee of equal protection. Resp. L.K.
ADD.005. Appellants filed their brief containing constitutional arguments lessthan a day before the District Court held an emergency hearing, leaving theother parties no time to respond. Resp. L.K. ADD.056 (Reyes, J., concurring).
The District Court held a hearing the next day, at which it denied Appellants’
motion for a stay in the change of placement. Resp. L.K. ADD.006. The
constitutional arguments were not argued before the Court. Resp. L.K. ADD.056(Reyes, J., concurring).

2 Both ICWA and MIFPA use the term “Indian.” Because that term is consideredby some to be outdated, this brief uses the term “Native,” except where directly
quoting a court or statutory provision.
5

Ki.K. and Kh.K. were moved to R.F.’s home shortly thereafter. Throughsubsequent legal proceedings, the District Court denied Appellants’ remaining
requests, but did not explicitly rule on the constitutionality of ICWA or MIFPA.
Resp. L.K. ADD.006.
Appellants appealed to the Court of Appeals, which affirmed the denial of
the stay in change of placement and held that MIFPA is constitutional, while
remanding other issues to the District Court. See Resp. L.K. ADD.040. The
Court declined to rule on the constitutionality of ICWA because it determinedthat the District Court had relied on MIFPA, not ICWA, in placing the children
with R.F. Resp. L.K. ADD.022–023, 031.
This appeal followed, in which Appellants again challenge theconstitutionality of MIFPA and ICWA broadly on equal protection grounds.
ARGUMENT
I.

This Court Should Reject Appellants’ Constitutional Challenge to
ICWA Because it Was Not Addressed by the Courts Below and Because
Appellants Lack Standing.
Because Appellants’ equal protection challenge to ICWA was not fully

considered by the District Court or the Court of Appeals, this Court should
likewise decline to entertain it. If this Court does address Appellants’constitutional challenge to ICWA, it should be to reject it for lack of jurisdiction:
Appellants lack standing to challenge ICWA’s constitutionality.

6A. This Court Should Not Address ICWA’s Constitutionality when
Neither of the Courts Below Ruled on the Issue.
As an initial matter, there is no lower court ruling on the constitutionalityof ICWA for this Court to review: the District Court did not explicitly address
Appellants’ constitutional arguments; the Court of Appeals ruled on—andrejected—Appellants’ argument that MIFPA is unconstitutional but declined torule on the constitutionality of ICWA.3
Minnesota appellate courts generally do not consider issues that were notthoroughly developed in or addressed by the court(s) below, see Thiele v. Stich,
425 N.W.2d 580, 582 (Minn. 1988), and are particularly reluctant to stretch toreach constitutional issues, see In re Senty-Haugen, 583 N.W.2d 266, 269 n.3(Minn. 1998); see also Lott v. Davidson, 109 N.W.2d 336, 345 (Minn. 1961) (“Thepower of the court to declare a law unconstitutional is to be exercised only whenabsolutely necessary in a particular case.”).
The constitutionality of ICWA—and delivery on the United States’ trust
and treaty obligations—is too important an issue to take up without thoroughbriefing and consideration at all levels, see infra at II(B). Because neither of the

3 The Court of Appeals held that because 25 U.S.C. § 1921 requires courts toapply state law where state law provides a higher standard of protection to achild or the child’s parents, and the good cause exceptions to MIFPA’s placement
preferences are narrower than the good cause exceptions to ICWA’s placement
preferences, MIPFA applies in this case. Resp. L.K. ADD.022–023. This analysis
supplies another reason this Court should not reach the merits of Appellants’constitutional challenge to ICWA.
7lower courts ruled on ICWA’s constitutionality, this Court should not now
entertain Appellants’ constitutional challenge.
B. Appellants Lack Standing to Challenge ICWA’s Constitutionality.
Standing is a jurisdictional issue; “[t]he lack of standing bars
consideration of a claim by a court.” Garica-Mendoza v. 2003 Chevy Tahoe, 852
N.W.2d 659, 663 (Minn. 2014). To have standing, a party must have sufferedsome injury-in-fact, which is “a concrete and particularized invasion of a legally
protected interest.” Id. (internal quotation omitted). The injury must be “fairly
traceable to the challenged action . . . and likely to be redressed by a favorable
judicial decision.” Id. Appellants lack standing to challenge ICWA’s
constitutionality because they have no legal authority to assert any injuries
allegedly suffered by Ki.K. and Kh.K., and they have not themselves been
injured by ICWA’s preference for Native foster homes.
i.

Appellants Have No Legally Protected Interest in the Constitutional
Rights of Others.

Appellants’ opening brief is exclusively dedicated to the contention that
ICWA, broadly, is an affront to equal protection because children covered by
ICWA are treated differently and worse on account of their race. Setting aside
that ICWA was not applied in this case, see Resp. L.K. ADD.022–023,4 that

4 As noted above, the Court of Appeals held that MIFPA’s placement preferences,not ICWA’s, govern in this case. This subsection and the next explain why
8ICWA’s application does not depend on race-based classifications, see infra at II,
as well as the fact that ICWA is widely recognized to be the “gold standard” forchild welfare practice, see Brief of Casey Family Programs, et al., as Amici

Curiae, Haaland v. Brackeen, 599 U.S. 255 (2023) (Nos. 21-376, 21-377, 21-378,
21-380), 2022 WL 3648364, Appellants lack standing to make this argument.
“[O]ne who invokes the power of the court to declare a statuteunconstitutional must be able to show not only that the statute is invalid butthat the person has sustained or is in immediate danger of sustaining somedirect injury resulting from its enforcement….” Paulson v. Lapa, Inc., 450
N.W.2d 374, 380 (Minn. Ct. App. 1990) (citing Lott, 109 N.W.2d at 345.) A
litigant cannot create a justiciable controversy by raising an alleged equal
protection injury to others; the litigant “lacks standing to raise th[e] issue on
behalf of [others].” Paulson, 450 N.W.2d at 380. That the statute “affects therights of others is no concern of his. He may champion hi[s] own, but not therights of others.” Lott, 109 N.W.2d at 345 (internal quotation omitted).
Appellants lack standing to challenge ICWA’s constitutionality on behalf ofKi.K. and Kh.K.5

Appellants would lack standing to challenge ICWA’s placement preferences even
if the courts below had applied ICWA.
5 Ki.K. and Kh.K. do not lack for champions to assert their rights: L.K.’s parental
rights remain intact, the county has taken custody of the children, a guardianad litem has been appointed, and the Nation may arguably raise its children’s
9ii.

Appellants Have Not Been Injured by ICWA’s Preference for Native
Foster Homes.

Appellants did not argue in their opening brief that their own
constitutional rights have been violated, or that they have been directly injured
by ICWA’s placement preferences. But because the Court of Appeals’ holding on
standing turned on an alleged injury to Appellants, see Resp. L.K. ADD.029–
030, it bears noting: Appellants were not injured by ICWA’s preference for “anIndian foster home,” because that was not the preference applied in this case.
ICWA creates a hierarchy of preferred foster care placements. 25 U.S.C. §1915(b). The first tier of preferred placements—the tier that would have applied
when Ki.K. and Kh.K. were moved to R.F.’s home, had ICWA been the law inoperation—is for “a member of the Indian child’s extended family.” 25 U.S.C. §1915(b)(i). To the extent Appellants could have been harmed by ICWA, it would
have been by application of this first placement preference: Appellants are not a
preferred placement for Ki.K. and Kh.K. because they are not members of Ki.K.
and Kh.K.’s extended family. But there is no credible argument to be made thatapplication of this placement preference involves racial discrimination, as it
applies to all extended family members, whether Native or not. A similarplacement preference exists in MIFPA, Minn. Stat. § 260.773 subdiv. 3, andconstitutional rights as parens patriae, see State, Dep’t Health & Soc. Servs. v.
Native Village of Curyung, 151 P.3d 388, 399–402 (Alaska 2006). Appellants
need not and may not do so.
10generally applicable Minnesota child welfare law also prioritizes placement withrelatives for all children, see Minn. Stat. § 260C.212, subdiv. 2(a). Appellants
have no argument that application of this first placement preference has injured
their constitutional rights.
Notably, even if R.F. had not been a relative of Ki.K. and Kh.K., ICWA’s
second tier foster care placement preference—the preference for “a foster homelicensed, approved, or specified by the Indian child’s Tribe,” 25 U.S.C. §1915(b)(ii)—would have applied because R.F. is a licensed foster parent who was
specified by the Nation. But again, even if Appellants had been “injured” by thissecond placement preference, there would be no credible argument that thepreference was a racial classification, as it applies to any foster home licensed,
approved, or specified by the child’s Tribal Nation, whether Native or not.
It is the next placement preference—the preference for “an Indian foster
home licensed or approved by an authorized non-Indian licensing authority”—
that requires that Native foster homes be considered over non-Native foster
homes. 25 U.S.C. § 1915(b)(iii). It is to this preference that the U.S. Supreme
Court referred in Brackeen, when it noted that alleging a racial discrimination
injury from the operation of a placement preference could be sufficient to11

establish injury for standing purposes. See 599 U.S. at 292.6 And it is upon thisportion of Brackeen that the Court of Appeals mistakenly relied in determiningthat Appellants had standing for their constitutional challenge. See Resp. L.K.
ADD.030. But Appellants cannot allege that they were injured by a preference
for “an Indian foster home” because that preference was not applied in this case.
Put another way, even if this Court held the preference for “an Indian foster
home” to be unconstitutional, that holding would not redress any injury sufferedby Appellants; R.F.’s home would remain a preferred placement for Ki.K. and
Kh.K. because R.F. is a member of the children’s extended family.7
Appellants cannot allege that ICWA’s preference for “an Indian foster
home” applied here. Appellants cannot and do not allege a racial discrimination
injury from ICWA’s relative placement preference (the preference that would
have applied, had the courts below applied ICWA). Appellants lack standing to

Brackeen Court referenced both foster and adoptive homes,
the underlying cases at issue in Brackeen were adoption cases. See 599 U.S. at
6 Notably, while the268–70. CHIPS proceedings are fundamentally different from adoption
proceedings: in an adoption case, the prospective adoptive family seeks topermanently add a child to their family, see, e.g., Minn. Stat. § 259.23, subdiv.
2(h), but in a CHIPS proceeding, the ultimate goal is to return the child to herfamily of origin, see Minn. Stat. § 260C.001, subdiv. 2(b)(7)(i). A foster home
plays an important, but ultimately temporary, custodial role. See, e.g., Matterof Welfare of E.G., 268 N.W.2d 420, 422 (Minn. 1978).
7 Arguably, even if this Court declared all of ICWA’s foster care placement
preferences unconstitutional, R.F.’s home would remain a favored placement for
Ki.K. and Kh.K. because of Minnesota’s preferences for relative placements andfor placing siblings together. See Brief of Respondent Red Lake Nation (“NationBr.”) at 8–11.
12challenge ICWA’s constitutionality and this Court should dismiss theirchallenge for lack of jurisdiction.
II.

ICWA Complies
Requirements.

with

the

Constitution’s

Equal

Protection

Even if Appellants’ equal protection arguments were properly before thisCourt, their assertion that ICWA is unconstitutional is baseless. ICWA’s
classifications are political, not racial, and therefore subject to rational basis
review—which they satisfy.8
A. Equal Protection Analysis Involves Two Distinct Steps.
The Fifth and Fourteenth Amendments to the U.S. Constitution prohibit
the government from denying to any person equal protection under the law. See

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216–18 (1995). To determine
whether a government action treating two groups of similarly situatedpeople differently is a denial of equal protection, courts apply a two-step review
process, where step one requires determining whether the government action
creates a constitutionally suspect classification, such as one based on race, andstep two requires applying the appropriate level of scrutiny for the type ofAppellants propose, in a footnote, an alternative theory: that ICWA
discriminates unconstitutionally on the basis of national origin. To the extent
this under-developed theory requires a response, the response is the same asthat articulated below: ICWA’s classifications are grounded in the special
political relationships between Tribal Nations and their people and between the
United States and Tribal Nations, and as such are unique, non-suspect politicalclassifications subject only to rational basis review.
813

classification. See Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312–14(1976). If the government action creates a constitutionally suspect classification,
the court applies strict scrutiny, which requires the government to have a“compelling governmental interest[]” and have “narrowly tailored” its measuresto achieve that interest, Adarand, 515 U.S. at 227. If the government action does
not create a suspect classification, the court applies the rational basis test, whichasks only whether the government action is rationally related to a legitimate
governmental interest. Romer v. Evans, 517 U.S. 620, 631 (1996).
B. Two Political Relationships Serve as the Basis for Tribal Nations andNative People’s Unique Political Status under U.S. Law.
The United States frequently legislates and otherwise acts with respect toTribal Nations and Native people, and those classifications are regularly upheld
as non-suspect political classifications entitled to rational basis review, rather
than suspect racial classifications subject to strict scrutiny. See Morton v.

Mancari, 417 U.S. 535, 551–55 (1974); see also Nation Br. at 34–36. The uniqueand long-standing legal status of Tribal Nations and Native people—upon which
the United States may properly act in alignment with equal protection
requirements—is grounded in two political relationships: the relationshipbetween the United States and Tribal Nations, and the relationship between
Tribal Nations and their own people.

14

i.

The Unique Political Relationship Between the United States andTribal Nations is Predicated on Tribal Nations’ Inherent
Sovereignty, Long-Standing, and Enshrined in the Constitution.

Tribal Nations are and always have been sovereign political entities: thisstatus is inherent, predates the arrival of colonizing forces, and does not dependon the existence of—or recognition from—the United States. See Michigan v.

Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014) (describing Tribal Nations as“separate sovereigns pre-existing the Constitution”) (quoting Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 56 (1978)); see also Brackeen, 599 U.S. at 308(Gorsuch, J., concurring) (explaining that before colonization, Tribal Nations“existed as ‘self-governing sovereign political communities’” and that “suchentities do not ‘cease to be sovereign and independent’ even when subject tomilitary conquest—at least not ‘so long as self government and sovereign andindependent authority are left in the[ir] administration’”) (quoting UnitedStates v. Wheeler, 435 U.S. 313, 322–23 (1978), and Worcester v. Georgia, 6 Pet.
515, 561 (1832)); United States v. Lara, 541 U.S. 193, 210 (2004) (Stevens, J.,
concurring) (“The inherent sovereignty of the Indian tribes has a historical basisthat merits special mention. They governed territory on this continent long
before Columbus arrived.”). Tribal Nations’ inherent sovereignty is supported byinternational law principles. Brackeen, 599 U.S. at 308 (Gorsuch, J., concurring)(referring to “long-held tenet of international law”); Daniel I.S.J. Rey-Bear &Matthew L.M. Fletcher, We Need Protection From Our Protectors: The Nature,15

Issues, and Future of the Federal Trust Responsibility to Indians, 6 Mich. J.
Env’t & Admin. L. 397, 412 (2017) (“[T]he relationship of Indian tribes with theUnited States is founded on ‘the settled doctrine of the law of nations[.]’”).
From the beginning, the United States and its predecessor colonizing
governments demonstrated their recognition of Tribal Nations as sovereign
political entities by interacting with them as such. United States v. Forty-Three

Gallons of Whiskey, 93 U.S. 188, 196 (1876) (“From the commencement of its
existence, the United States has negotiated with the Indians in their tribal
condition as nations . . . capable of making treaties. This was only following thepractice of Great Britain before the Revolution.”); see also Brackeen, 599 U.S. at
307–33 (Gorsuch, J., concurring); Herrera v. Wyoming, 587 U.S. 329, 345 (2019)(“A treaty is ‘essentially a contract between two sovereign nations.’”) (quoting

Washington v. Wash. State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658,
675 (1979)); Matthew L.M. Fletcher, The Original Understanding of the Political

Status of Indian Tribes, 82 St. John’s L. Rev. 153, 180 (2008) (noting that from1763 through the ratification of the Fourteenth Amendment, the historical
record “provides remarkably unambiguous support” for the proposition that theUnited States approached “Indian affairs . . . in the context of tribal political
relationships with the federal government.”).
Through its war and treaty-making with Tribal Nations—engagementthat recognized Tribal Nations’ status as sovereigns—the United States
16

assumed ongoing trust and treaty obligations to Tribal Nations and Native
people that are political in nature. See Seminole Nation v. United States, 316
U.S. 286, 296–97 (1942) (“In carrying out its treaty obligations with the Indian
tribes the Government is . . . more than a mere contracting party . . . .[I]t has
charged itself with moral obligations of the highest responsibility and trust.”);see generally American Law Institute, RESTATEMENT OF THE LAW OF AMERICAN
INDIANS, Ch. 1 § 4 (2021).
The unique political relationship between the United States and Tribal
Nations was recognized and preserved in the Constitution, including throughthe Indian commerce clause, U.S. CONST., art. I, § 8, cl. 3; the treaty clause, U.S.
CONST., art. II, § 2, cl. 2; the territory clause, U.S. CONST., art. IV, § 3, cl. 2; and“the Constitution’s adoption of preconstitutional powers;” Lara, 541 U.S. at 201;

see also McClanahan v. State Tax Comm’n of Arizona, 411 U.S. 164, 172 n.7(1973); United States v. Holliday, 70 U.S. 407, 418 (1865); Brackeen, 599 U.S. at
307, 310 (Gorsuch, J., concurring) (referring to “Indian-law bargain struck in our
Constitution,” the terms of which include that “Indian Tribes remain
independent sovereigns with the exclusive power to manage their internalmatters.”). The Constitution also directly refers to Native individuals in the
Indian non-taxation portion of the apportionment clause. U.S. CONST., art. I, §2, cl. 3. These constitutional provisions empower the United States to deliver on17its trust and treaty obligations. Brackeen, 599 U.S. at 275; United States v.

Antelope, 430 U.S. 641, 647 n.8 (1977); Mancari, 417 U.S. at 551–52.
The federal government continues to address Tribal Nations assovereigns. Federal recognition of a Tribal Nation remains a “formal politicalact” that solidifies the “government-to-government relationship” between aparticular Tribal Nation and the United States. H.R. REP. NO. 103–781 (1994);

see also 25 C.F.R. § 83.2(a) (2015); 140 Cong. Rec. S6145 (May 19, 1994) (Sen.
McCain) (“The recognition of an Indian tribe by the Federal Government is justthat—the recognition that there is a sovereign entity with governmental
authority which predates the U.S. Constitution and with which the Federal
Government has established formal relations.”). Congress, in celebrating the200th anniversary of the signing of the Constitution, reaffirmed that the
government-to-government relationship between the United States and Tribal
Nations is installed therein. H.R. Con. Res. 331, 100th Cong. (1988). And
Congress continues to affirm Tribal Nations’ inherent sovereignty andgovernmental authority. See, e.g., Coronavirus Preparedness and Response
Supplemental Appropriations Act, Pub. L. No. 116–123, 134 Stat. 146 (2020);
Indian Civil Rights Act, 25 U.S.C. § 1301(2)(“‘[P]owers of self-government’means and includes all governmental powers possessed by an Indian tribe …;
and means the inherent power of Indian tribes, hereby recognized and affirmed
to exercise criminal jurisdiction over all Indians.”); 25 U.S.C. § 1304(b)(1) (“[T]he18

powers of self-government of a participating tribe . . . include the inherent powerof that tribe, which is hereby recognized and affirmed, to exercise special Tribal
criminal jurisdiction over all persons.”).
ii.

The Relationship Between Tribal Nations and their People is
Political, not Racial.

Separately, the political relationship between each Tribal Nation and its
people is one between an inherently sovereign governmental entity and theindividuals with whom it establishes a political relationship, including throughcitizenship. See Antelope, 430 U.S. at 645 (recognizing that Tribal Nations havesovereignty over their people, including the power to regulate internal and social
relations); Citizenship Code of the Lac Courte Oreilles Band of Lake Superior
Chippewa Indians, Ch. CTZ. 1 (“This ordinance is enacted pursuant to theinherent sovereign authority of the Lac Courte Oreilles Band of Lake Superior
Chippewa Indians to determine its Tribal citizenship which predates its Treatiesof 1825, 1826, 1837, 1842, 1847, and 1854 with the United States Government.”).
Citizenship may come with rights and duties, such as the right andresponsibility to participate in government through voting. See, e.g., PUEBLO OF
LAGUNA CONSTITUTION, art. VII, § 2.
A Tribal Nation’s inclusion of a lineal descent or heredity requirement in
its citizenship criteria does not transform a political relationship into a racial

19one.9 Determining who it will recognize as part of its polity is a core prerogativeof a sovereign, no matter how that sovereign identifies its people. See Santa

Clara Pueblo, 436 U.S. at 54–55, 71–72 n. 32; Brackeen, 599 U.S. at 329(Gorsuch, J., concurring); Peter J. Spiro, A New International Law of

Citizenship, 105 Am. J. Int’l L. 694, 697 (2011). Moreover, centering citizenshipon one’s ancestral ties is common international practice. See, e.g., Act No. 91 of
1992 (Law No. 91/92) (Italy) (allowing citizenship for the children andgrandchildren of Italian citizens); Polish Citizenship Act of 1920, arts. 2, 11(Poland), Polish Citizenship Act of 1951, arts. 9, 11 (Poland), and Polish
Citizenship Act of 1962, arts. 6, 7 (Poland) (allowing citizenship under strictcircumstances when an unbroken Polish ancestry is present); Irish Nationality
and Citizenship Act 1956, § 7(2) (Ireland) (allowing citizenship for grandchildrenof Irish citizens in certain circumstances).
C. The U.S. Supreme Court Has Held that Government Action Directed
at Tribal Nations and Native People Creates a Political Classification
Subject to Rational Basis Review.
In 1974, the United States Supreme Court in Mancari unanimously
affirmed the principle that the United States can lawfully treat Tribal Nations

9 Indeed, it is the United States that has encouraged Tribal Nations to include a

genealogical connection as one component of their Tribal citizenship criteria. For
example, gaining federal recognition through 25 CFR Part 83 requires
submitting evidence to the U.S. Department of the Interior showing that present
day Tribal citizens lineally descend from a Tribal political entity that existed in
the past. 25 C.F.R. § 83.11(e) (2015).
20and Native people differently from other groups without running afoul of theConstitution’s equal protection requirements. 417 U.S. at 554–55. The Court
held that a Bureau of Indian Affairs hiring preference for people who were
citizens of federally recognized Tribal Nations and met a blood quantum
threshold did not violate equal protection. The Court first held that “thispreference does not constitute ‘racial discrimination’” and “[i]ndeed, it is noteven a ‘racial’ preference,” id. at 553, but rather is “political . . . in nature,” id. at
553 n.24. The Court then went on to the second step of the analysis, holding thatthe political classification was rationally related to “the fulfillment of Congress’
unique obligation toward the Indians” and to more specific governmental
interests incorporated within that obligation. Id. at 555.
In concluding that the hiring preference was a political classification, andnot a racial one, the Court pointed to the political relationship between a Tribal
Nation and its people, stating that the hiring preference was directed at “Indians
not as a discrete racial group,” but, rather, as members of sovereign Tribal
Nations. Id. at 554; 553 n.24 (“The preference is not directed towards a ‘racial’group consisting of ‘Indians’; instead, it applies only to members of ‘federally
recognized’ tribes.”).
The Court also referenced the political relationship between the UnitedStates and Tribal Nations as supporting its conclusion that the classification
was political. It discussed the United States’ longstanding treatment of Tribal
21

Nations as political entities, the United States’ ongoing trust and treaty
obligations, and the constitutional powers the government uses to carry out
those obligations. Id. at 551 (citing the unique legal status of Tribal Nations andCongress’s power and responsibility to legislate on their behalf); id. at 552(reasoning that the United States, through treaty making and other politicalactions, in exchange for taking possession of Tribal Nations’ lands, “assumed the
duty of furnishing [] protection,” and thus required “the authority to do all thatwas required to perform that obligation”); id. (noting that the Constitution itself“singles Indians out as a proper subject for separate legislation”).10
After concluding the hiring preference was a political classification, rather
than a racial classification, the Court in Mancari applied the second step of the

10 Courts applying

Mancari have also pointed to the Constitution’s recognitionof this political relationship as a basis for their conclusion that legislation
benefitting Tribal Nations and Native people is political in nature. See, e.g.,
Antelope, 430 U.S. at 645 (“[C]lassifications expressly singling out Indian tribes
as subjects of legislation are expressly provided for in the Constitution andsupported by the ensuing history of the Federal Government’s relations with
Indians.”); United States v. Cohen, 733 F.2d 128, 139 (D.C. Cir. 1984) (“[I]n a
sense the Constitution itself establishes the rationality of the present
classification, by providing a separate federal power which reaches only thepresent group.”). Courts have also held in other contexts that the Constitution
cannot logically be read to explicitly vest power in the United States to takeactions directed at fulfilling the United States’ trust and treaty obligations to
Tribal Nations and Native people and to simultaneously prohibit such actions.
See Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1217 (5thCir. 1991) (“[t]he federal government cannot at once fulfill its constitutional role
as protector of tribal Native Americans and apply conventional separatist
understandings of the establishment clause to that same relationship.”).
22

equal protection analysis. The Court held that “[a]s long as the special treatment
can be tied rationally to the fulfillment of Congress’ unique obligation toward
the Indians, such legislative judgments will not be disturbed,” and, “[h]ere,
where the preference is reasonable and rationally designed to further Indianself-government, we cannot say that Congress’ classification violates due
process.” Id. at 555.
While Mancari is the leading case in this arena, courts have continuously
upheld the principle that United States actions directed at Tribal Nations andNative people in furtherance of the United States’ unique trust and treaty
obligations are constitutional and have referenced the unique political
relationships involved. See, e.g., Washington State Com. Passenger Fishing

Vessel Ass’n, 443 U.S. 658 (1979); Washington v. Confederated Bands andTribes of Yakima Indian Nation, 439 U.S. 463 (1979); Antelope, 430 U.S. 641;
Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977); KG Urban Enters., LLC
v. Patrick, 693 F.3d 1 (1st Cir. 2012); United States v. Wilgus, 638 F.3d 1274
(10th Cir. 2011); Means v. Navajo Nation, 432 F.3d 924 (9th Cir. 2005); see also
Nation Br. at 35–36.
D. As ICWA Is Grounded inClassifications are Political.

Both

Political

Relationships,

Its

The Native children to whom ICWA extends through its “Indian child”
definition, 25 U.S.C. § 1903(4), include only those encompassed within the23

above-referenced

political

relationships—making

ICWA’sclassifications

political rather than racial.
i.

ICWA Applies Only to Children Who Have Political Relationships
with Their Tribal Nations.

First and foremost, ICWA applies to children who are citizens of their
Tribal Nations. 25 U.S.C. § 1903(4) (“‘Indian child’ means any unmarried person
who is under age eighteen and is . . . a member of an Indian tribe”). This is asclear a connection to a political entity as a person can have.
ICWA also applies to children who are eligible for citizenship in their
Tribal Nation and have a biological parent who is a citizen of a Tribal Nation.

Id. (“‘Indian child’ means any unmarried person who is under age eighteen andis . . . eligible for membership in an Indian tribe and is the biological child of amember of an Indian tribe[.]”). Despite Appellants’ assertions otherwise,
eligibility for citizenship—while not equivalent to formalized citizenship—is as
much a political status as citizenship: the Tribal Nation, as sovereign,determines—through Tribal law—which people are eligible for participation in
the Tribal political entity. This exercise of sovereignty creates a political
relationship between the sovereign and the person it has identified for
citizenship. A determination that a child is eligible for citizenship is akin to the
Tribal Nation reaching its arms out to the child, welcoming the child into thepolitical entity.
24

That a child has not yet perfected her citizenship does not transfigure apolitical status into a racial status. Nor does it mean that the child or her parents
have rejected the Tribal Nation’s embrace. Under many Tribal Nations’citizenship laws, immediate enrollment at birth is not possible. See, e.g., Red
Lake Band of Chippewa Indians, Child Application for Enrollment (last revision
Jan. 13, 2020) https://www.redlakenation.org/wp-content/uploads/2020/01/2020Application-Child.pdf (requiring submission of birth certificate and application
to Tribal Enrollment Department prior to approval for enrollment); WYANDOTTENATION CONST., art. 5, § 5 (requiring the Nation’s Council to make final decisions
on citizenship, where the Council consists of all adult citizens of the Nation and
the Council only meets annually each September); POARCH BAND OF CREEKINDIANS CONST., art. I, § 1(B)(3) (requiring submission of completed applicationthat is then subject to review and approval by Tribal Council prior toenrollment). Thus, in many Tribal Nations, eligibility for citizenship is theclosest political tie an infant could have to the Tribal Nation at birth—a time
when ICWA’s protections are often most necessary.
ICWA’s requirement that children whose Tribal citizenship is not yet
formalized have a parent who is a Tribal citizen narrows the category of children
covered by ICWA in a way that ensures an even closer connection with the Tribal
Nation. Although the child has not yet been able to perfect her own citizenship,25

the parent has maintained that reciprocal sovereign-to-citizen relationship;
there are arms reaching in both directions of the political relationship.11
In Brackeen, the petitioners challenging ICWA’s constitutionality—likethose here—lacked standing to make equal protection arguments, so the U.S.
Supreme Court did not address the merits of those arguments. 599 U.S. at 291.
The Court below, however—the U.S. Court of Appeals for the Fifth Circuit
sitting en banc—directly addressed ICWA’s constitutionality, pointing to thepolitical relationship between the child and the Tribal Nation in concluding
ICWA’s “Indian child” definition was a political classification. Brackeen v.

Haaland, 994 F.3d 249, 339 (5th Cir. 2021), aff’d in part, vacated in part, rev’din part, 599 U.S. 255 (2023).12 With regard to children eligible for citizenship, it
explained “ICWA’s eligibility standard simply recognizes that some Indianchildren have an imperfect or inchoate Tribal membership” and “the standard
embraces Indian children who possess a potential but not-yet-formalized
affiliation with a current political entity—a federally recognized tribe.” Id.

11 While the requirement that a parent be a Tribal citizen is not necessary toestablish the child’s political ties to her own Tribal Nation, nor does it lessen thepolitical relationship between the child and the Tribal Nation, and it certainly
does not transform the child’s political status into a racial classification.
12 Judge Dennis’s opinion holding that ICWA’s “Indian child” classification does
not violate equal protection garnered the majority of votes and thus serves as
the en banc court’s holding on that issue. Brackeen, 994 F.3d at 267–68.
26

ii.

ICWA is an Outgrowth of the United States’ Political Relationshipwith Tribal Nations.

That ICWA applies only to children who have a political relationship with
their Tribal Nation is enough to establish ICWA as creating a politicalclassification. But ICWA’s status as a political classification is also supported by
the fact that Congress enacted ICWA in accordance with the United States’
political relationship with Tribal Nations.
Congress enacted ICWA in furtherance of its trust and treaty obligations
to Tribal Nations and Native people, 25 U.S.C. § 1901(2), which are grounded inpolitical relationships. In ICWA, Congress affirmed its duty to preserve Tribal
Nations and acknowledged that “there is no resource that is more vital to thecontinued existence and integrity of Indian tribes than their children[.]” 25
U.S.C. § 1901(3). Congress recognized that Tribal Nations and Native families
have been harmed by the removal of their children, 25 U.S.C. §§ 1901(4),(5), that
Tribal Nations cannot survive without their children, 25 U.S.C. § 1901(3), that
the United States, in its role as trustee, has a duty to protect Native children,

id.,13 and that ICWA would create better outcomes for children, their families,
and their Tribal Nations, 25 U.S.C. § 1902.

13 The United States’ obligations toward Tribal Nations have, from the very

beginning, included the protection of Tribal Nations’ children. See, e.g., Treatyof Fort Pitt with the Delaware Nation, art III, Sept. 17, 1778, 7 Stat. 13 (treaty
made to construct a fort to protect Native children).
27

Further, Congress enacted ICWA pursuant to its constitutional authority
over Indian affairs. 25 U.S.C. § 1901(1); Brackeen, 599 U.S. at 280. As describedabove, the constitutional Indian affairs powers are themselves political in natureand empower Congress to carry out its political trust and treaty obligations.
E. ICWA Satisfies the Rational Basis Test Applicable to Political
Classifications.
Because ICWA is grounded in the United States’ political relationships
with Tribal Nations, and in Tribal Nations’ political relationships with theirpeople, its classifications are political. ICWA does not create suspect
classifications, so ICWA need only have a rational basis.
ICWA clearly executes the United States’ trust and treaty obligations, andthus its “unique obligation toward the Indians,” a vital governmental interest
identified in Mancari. See 417 U.S. at 555. ICWA was a direct response to theassimilation-fueled mass removal of Native children that has had devastating
impacts on those children, their families, and their Tribal Nations. Brackeen,
599 U.S. at 297–307 (Gorsuch, J. concurring). ICWA’s substantive andprocedural protections are rationally related to reducing this mass removal, in
furtherance of the United States’ interest in protecting Native children andTribal Nations. See Brackeen, 599 U.S. at 305 (Gorsuch, J. concurring) (“Atbottom, though, the law’s operation is simple. It installs substantive and28

procedural guardrails against the . . . removal of Indian children from tribal
life.”); Holyfield, 490 U.S. at 32.
ICWA is also rationally related to the more specific governmental interest
that was identified in Mancari, the United States’ interest in furthering Tribal
self-government.14 See 417 U.S. at 555. ICWA protects against an existential
threat to Tribal self-government, as a Nation cannot survive without its citizens,and children are the future of a Nation. See 25 U.S.C. § 1901(3).
The same analysis would apply to a narrower challenge focused on theplacement preference for Native foster homes over non-Native foster homes. The
placement preference is rationally related to ensuring children are raised in a
family that shares their political status as Native people and lives within thecontext of the historical and cultural experiences of Tribal Nations and Native
people in the United States.
CONCLUSION
For the foregoing reasons, Amici urge this Court to dismiss Appellants’constitutional challenges to ICWA.

14 While courts have held that furthering Tribal self-governance is asufficient

governmental interest to satisfy rational basis review under step two of theequal protection test, courts have not accepted Appellants’ argument that aconnection to Tribal self-government is necessary, under step one of the equal
protection analysis, for a classification to be political.
29

Dated: August 28, 2024.
/s/ Joseph F. Halloran
Joseph F. Halloran (#244132)
Christopher Smith (#0504495)
The Jacobson Law Group180 East Fifth Street, Suite 940
St. Paul, MN 55101(651) 644-4710
jhalloran@thejacobsonlawgroup.com
csmith@thejacobsonlawgroup.com

Sydney Tarzwell (pro hac vice)
Native American Rights Fund
745 W 4th Avenue, Suite 502
Anchorage, AK 99501(907) 276-0680
tarzwell@narf.org

Beth M. Wright
Native American Rights Fund
250 Arapahoe Avenue
Boulder, CO 80302(303) 447-8760
wright@narf.org
Morgan E. Saunders
Native American Rights Fund
950 F Street, NW, Suite 1050
Washington, D.C. 20004(202) 785-4166
saunders@narf.org

Attorneys for California Tribal Families Coalition et al.

30

CERTIFICATION OF COMPLIANCE WITH MINNESOTA RULES OFAPPELLATE PROCEDURE
I hereby certify that Amici’s brief conforms to the requirements of Minn. R. Civ.
P. 132.011 and complies with the typeface requirements using font size 13. The
length of this brief is 6987 words, as computed by the word processing programused to prepare this document, Microsoft Word Office 365.
/s/ Joseph F. Halloran
Joseph F. Halloran (#244132)
Christopher Smith (#0504495)
180 East Fifth Street, Suite 940
St. Paul, MN 55101(651) 644-4710
jhalloran@thejacobsonlawgroup.com
csmith@thejacobsonlawgroup.com
Sydney Tarzwell (pro hac vice)
Native American Rights Fund
745 W 4th Avenue, Suite 502
Anchorage, AK 99501(907) 276-0680
tarzwell@narf.org
Beth M. Wright
Native American Rights Fund
250 Arapahoe Avenue
Boulder, CO 80302(303) 447-8760
wright@narf.org
Morgan E. Saunders
Native American Rights Fund
950 F Street, NW, Suite 1050
Washington, D.C. 20004(202) 785-4166
saunders@narf.org

Attorneys for California Tribal
Families Coalition et al31