ChatGPT and Generative AI Legal Research Guide

The following is an argument from the petitioner’s legal brief in Haaland v. Brackeen. Please create a draft detailed response to this argument. Please cite relevant legal authority to support your arguments and assertions.

SUMMARY OF ARGUMENT

I. ICWA's separate child-placement scheme for “Indian children” violates the Constitution's guarantee of equal protection.

A. Laws that treat “tribal Indians” differently than other American citizens are generally racial classifications subject to strict scrutiny. Rice v. Cayetano, 528 U.S. 495, 520 (2000); see also, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 207–08, 214 (1995). This general rule is subject to a limited exception for laws that draw political classifications by promoting “Indian self-government” and apply only to members of Indian tribes on or near Indian lands. Morton v. Mancari, 417 U.S. 535, 552 (1974). But this exception does not apply outside of that limited context and does not extend to laws that regulate an “affair of the State.” Rice, 528 U.S. at 522.

B. ICWA draws two classifications that are subject to strict scrutiny.

1. ICWA creates a separate child-placement scheme for “Indian children,” a broadly defined term that, at root, turns on the child's biological ancestry. But ICWA's adoption regime does not draw political classifications. Its definition of “Indian child” is *15 not limited to enrolled tribal members; it includes children who are not and may never become tribal members but are merely “eligible” to become tribal members. And even its classification of tribal-member children is almost universally based on biology; it operates exclusively in state courts - with no application in tribal courts or on or near tribal lands; and it usurps the historically state-run affair of child placement. Given that “[a]ncestry can be a proxy for race,” Rice, 528 U.S. at 514, and discrimination “solely because of ancestry” “is racial discrimination,” Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987), ICWA's definition of “Indian child” is subject to strict scrutiny.

2. ICWA also imposes a racial hierarchy of placement preferences. This system replaces the traditional best-interests-of-the-child analysis with Congress's determination that “Indian child[ren]” should be placed “in the Indian community.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37 (1989) (internal quotation marks omitted). In keeping with that objective, ICWA's preferences relegate non-Indian families to fourth-tier status behind any other Indian family, regardless of tribe. And non-Indian families that would like to adopt or foster an “Indian child” are precluded from qualifying as a preferred placement on account of their biological heritage. ICWA's preference for any Indian family of any tribe over all non-Indian families demonstrates that ICWA is untethered to promoting tribal self-government, and instead is suffused with a racial purpose.

C. ICWA cannot survive any level of scrutiny.

*16 1. ICWA's racial classifications clearly fail strict scrutiny. The government did not assert any compelling interest in the district court, ICWA attempts to remedy an outdated problem, and its preference for any Indian family of any tribe over non-Indian families is in no way narrowly tailored.

2. ICWA fails even rational-basis review. ICWA's “Indian child” definition is immensely under- and overinclusive as a means of preserving a tribal community, excluding children raised on a reservation if they lack a sufficient blood quantum, while sweeping up children with no connection to a tribe other than their biology. ICWA's placement preferences, meanwhile, are entirely disconnected from Congress's stated interest in preventing the removal of children from tribal lands; rather, they apply only to children who do not live on a reservation. Nor do they prevent the breakup of Indian families, given that they apply only after the child has been removed from the custody of his or her biological parents, meaning there is no Indian family to “break up.” And placing children with a different tribe cannot conceivably further a tribe's sovereignty interests.

Introduction:

The petitioner in Haaland v. Brackeen argues that the Indian Child Welfare Act (ICWA) violates the Constitution's guarantee of equal protection because it creates a separate child-placement scheme for "Indian children" that is based on race. The petitioner asserts that ICWA draws two classifications that are subject to strict scrutiny, namely, ICWA's definition of "Indian child" and its placement preferences. The petitioner further argues that ICWA cannot survive any level of scrutiny because it fails both strict scrutiny and rational-basis review.

Response:

The petitioner's argument is unpersuasive and contrary to established legal precedent. The ICWA's separate child-placement scheme for "Indian children" does not violate the Constitution's guarantee of equal protection. Rather, it is a valid exercise of Congress's plenary power over Indian affairs and serves a compelling government interest in protecting the welfare and sovereignty of Indian tribes.

Firstly, the petitioner's reliance on Rice v. Cayetano and Adarand Constructors, Inc. v. Pena to argue that laws that treat "tribal Indians" differently than other American citizens are generally racial classifications subject to strict scrutiny is misplaced. These cases deal with different legal issues and contexts from the ICWA. Rice v. Cayetano involved a challenge to Hawaii's policy of limiting voting for certain elected positions to "Native Hawaiians," while Adarand Constructors, Inc. v. Pena dealt with a federal affirmative action program that gave preferences to minority-owned businesses in contracting. The ICWA, on the other hand, is a federal law that regulates the placement of Indian children in foster care and adoption proceedings.

Moreover, the petitioner's contention that Morton v. Mancari's exception for laws that draw political classifications by promoting "Indian self-government" and apply only to members of Indian tribes on or near Indian lands is limited in scope and does not extend to laws that regulate an "affair of the State" is also flawed. The ICWA is a political classification that promotes Indian self-government by recognizing the unique political status of Indian tribes as domestic dependent nations and protecting their ability to maintain their cultural and familial connections with Indian children. As the Supreme Court held in Holyfield, the ICWA's placement preferences serve the "unique interest[s] of Indian children and . . . the preservation of Indian tribes."

Furthermore, the petitioner's argument that ICWA draws two classifications subject to strict scrutiny, namely, ICWA's definition of "Indian child" and its placement preferences, is erroneous. The ICWA's definition of "Indian child" is not solely based on ancestry but also encompasses tribal membership and cultural affiliation. It is a political classification that recognizes the unique status of Indian tribes as sovereign nations and the importance of maintaining their cultural and familial connections with Indian children. The ICWA's placement preferences are also based on the unique needs and interests of Indian children and serve the compelling government interest in protecting their welfare and sovereignty.

Finally, the petitioner's contention that ICWA cannot survive any level of scrutiny is unfounded. The ICWA satisfies strict scrutiny because it serves a compelling government interest in protecting the welfare and sovereignty of Indian tribes and is narrowly tailored to achieve that interest. The ICWA also passes rational-basis review because it is rationally related to a legitimate government interest in protecting Indian children's welfare and preserving Indian tribes' cultural and familial connections with them.

Conclusion:

In conclusion, the petitioner's argument that ICWA's separate child-placement scheme for "Indian children" violates the Constitution's guarantee of equal protection is unfounded. The ICWA is a valid exercise of Congress's plenary power over Indian affairs and serves a compelling government interest in protecting the welfare and sovereignty of Indian tribes. The ICWA's definition of "Indian child" and placement preferences are political classifications that recognize the unique status of Indian tribes as domestic dependent nations and the importance of maintaining their cultural and familial connections with Indian children. Therefore, the ICWA does not violate the Constitution's guarantee of equal protection.

Compare ChatGPT's response with the argument from respondents' briefs filed in Haaland v. Brackeen.

ICWA's “Indian Child” Definition Draws Political Classifications.

ICWA's “Indian child” definition “classifi[es] based on tribal status.” Yakima Nation, 439 U.S. at 501.

i. ICWA's first prong applies to children who are “member[s] of an Indian tribe.” § 1903(4). Classifications defined by member[ship in] ‘federally recognized’ tribes” are “not ... ‘racial.”’ Mancari, 417 U.S. at 553 & n.24. This Court has thus repeatedly upheld, on rational-basis review, statutes treating tribal members differently. Supra 53-54, 57-58. That includes, in Fisher v. District Court of Sixteenth Judicial District of Montana, 424 U.S. 382, 383, 390-91 (1976) (per curiam), upholding exclusive tribal jurisdiction over on-reservation adoption proceedings involving tribal members. Such classifications are political, whether on reservation or off.

Plaintiffs contend even this prong is “a racial classification,” Brackeen Br. 31; see Texas Br. 42, because tribal “[m]embership ... is based on lineal descent” and some Tribes employ blood-quantum requirements. Brackeen Br. 31; see Texas Br. 42. But to start, tribal membership is about much more than descent or blood, including political choices by Tribes to extend membership and by individuals to remain members. And this Court properly has never been *60 distracted by tribal citizenship practices; Tribes are a “separate people” whose “right to define [their] own membership”-like that of foreign governments-is “central to [their] existence as ... independent political communit[ies]” and “unconstrained” by the Fifth and the Fourteenth Amendments. Santa Clara Pueblo, 436 U.S. at 56, 72 n.32.44

ii. The second prong extends coverage to children who are “eligible for membership in an Indian tribe and [are] the biological child[ren] of a member.” § 1903(4).

This prong is not racial either: It applies only when Tribes have made political choices to make children membership-eligible; when parents have made political choices to maintain membership; and when the United States has made political choices to maintain government-to-government relationships. E.g., In re R.L.-P., 842 N.W.2d 889, 899 (N.D. 2014) (ICWA did not apply when “the father ... purposefully did not enroll in the Tribe”). Children “[a]re not subject to [ICWA] because they are of the Indian race but because” they or their parents “are enrolled [tribal] members.” Antelope, 430 U.S. at 646.

In ICWA, moreover, Congress crafted its definitions to ensure that “Indian children” have tight present-day affiliations with Tribes-a non-racial goal through and through. Congress initially considered applying ICWA *61 to all membership-eligible children. The Department of Justice, however, raised concerns with subjecting children who were eligible for membership-and had no other tribal connection-to exclusive tribal-court jurisdiction. H.R. Rep No. 95-1386 at 37-38. So Congress narrowed the definition to require that a biological parent also be a member and have voluntarily chosen to retain tribal affiliation. Id. at 39. The Department said this change “for the most part [] eliminated” its concerns. Id. Plaintiffs rely heavily on the Justice Department's statements, Brackeen Br. 5, 29, 51; Texas Br. 11-12, yet ignore how Congress changed course in response.

The approach ICWA takes to ensuring that membership-eligible children have this tight affiliation-attributing to them parents' choices to remain enrolled-is unexceptional. The law routinely treats parents and children that way. E.g., Holyfield, 490 U.S. at 48 (“Since most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents.”).

Nor does limiting ICWA's coverage to membership-eligible children whose biological parents are members, § 1903(4), render the second prong a racial classification. “State and federal laws are replete with provisions that target individuals based on” that type of “biological descent without reflecting racial classifications.” Davis v. Guam, 932 F.3d 822, 836 (9th Cir. 2019). That “include[s] laws of intestate succession, citizenship, and child custody,” id. at 836-37-including Texas's own, which define placement preferences for “relatives” based on “consanguinity,” Tex. Fam. Code § 264.751; see *62 Tex. Gov't Code § 573.022. A jus sanguinis approach to citizenship was common at the Founding.45 And U.S. citizenship still sometimes turns on “blood relationship[s].”  8 U.S.C. § 1409(a)(1). Other countries also determine “citizenship based on descent,” including Ireland, Greece, Armenia, Israel, Italy, and Poland. Pet. App. 150a n.51 (Dennis, J.).

Plaintiffs thus badly err with their Rice-based arguments that the Indian-child definition is a “proxy for race” because it considers biological parentage. Texas Br. 46. The Rice classification used “ancestry” to create exactly the type of immutable classification that is characteristic of a race-based statute: It reached back to 1778 and swept in “any descendent of the aboriginal [Hawaiian] peoples.” 528 U.S. at 509; cf. Hirabayashi v. United States, 320 U.S. 81, 88 (1943) (curfew for “all persons of Japanese ancestry”). Under ICWA, it never suffices that “an ancestor-even a remote one-was an Indian.” Brackeen Br. 30. The “Indian child” definition prevents that result by demanding a tight, present-day political affiliation.