Proper Parents, Proper Relief

Katie G. Graziano*

Indian children belong with Indian parents—or so says the Indian Child Welfare Act (ICWA). ICWA requires certain procedures for carrying out the adoption of an Indian child. Among those procedures is an explicit preference for Indian families over non-Indian families. The hierarchy is so strict that a court must prioritize placing a child with an Indian family even if she is already thriving in the home of a non-Indian family, and even if her biological parents chose a non-Indian family to adopt her. This regime presents a clear constitutional issue. Can the government deny a family the adoption of a child solely on account of their race?

The Fifth Circuit took up this question in 2021 and found that ICWA’s placement preferences violated the Equal Protection Clause. In Haaland v. Brackeen, the Supreme Court vacated in part the Fifth Circuit’s judgment, but not because it disagreed on the merits. Rather, the Court lacked jurisdiction because it could not redress the plaintiffs’ equal protection claim. The plaintiffs had named the wrong defendants: the Washington bureaucrats overseeing ICWA, not the state officials handling their adoptions on the ground. Indeed, Justice Kavanaugh wrote separately in Brackeen to emphasize that he looked forward to a future case “arising out of a state-court foster care or adoption proceeding” when the issue would be “properly raised by a plaintiff with standing.”

This Note explores how a plaintiff could bring such a case. To do so, it considers the novel legal question of whether a court can enjoin state (or even tribal) officials from enforcing an unconstitutional federal law.

Part I considers how the ideal resolution of the equal protection issue will not be achieved by challenging a final adoption decision, but by seeking pre-enforcement relief. Part II notices that pre-enforcement relief in this scenario will require applying Ex parte Young in a novel legal context. Part III finds that even if an Ex parte Young action is available, it will be difficult for the plaintiff to fashion a claim that is both ripe for review and fully redressable. The situation therefore presents a harsh reality of our constitutional system: the best remedy is not always found through the federal courts.

Continue reading in the print edition . . .

*(Née Alexander.)  Thank you to Professor A.J. Bellia for his excellent instruction in federal courts.  Thank you to Professor Bill Kelley for serving as a wonderful role model of who a lawyer should be and for teaching me to think like one.  Thank you to Tim Steininger, Chris Ostertag, and members of the Notre Dame Law Review for their helpful comments and edits.  Finally, thank you to my husband, Joseph Graziano, NDLS ’23, for his encouragement and insight.  And as with all things, may this little work too be ad maiorem Dei gloriam.