Fatal Proceduralism

We must reject the rigid, liberal system that instructs us to view perversions of law as faultless simply because the correct procedure was followed.

On June 15, 2023, the Supreme Court upheld the Indian Child Welfare Act (ICWA), a law that, despite its name, places tribal sovereignty above the lives of vulnerable native children who suffer abuse, neglect, and in some cases, death. The case, Haaland v. Brackeen, received little media attention, but the coverage of the highest court’s most recent term was once again dominated by a handful of cases that garnered major public attention: Students for Fair Admissions v. Harvard, 303 Creative LLC v. Elenis, and Department of Education v. Brown. 

These cases involved hotly debated topics like affirmative action, the tension between religious freedom, so-called LGBT rights, and student loan forgiveness. Haaland v. Brackeen, on the other hand, involved issues of statutory interpretation and the Commerce Clause. Buried within the court’s lengthy opinion penned by Justice Amy Coney Barrett, however, is the reality that our current system allows, and often requires, injustice to occur in the name of the rule of law. In a properly ordered society, however, the lives of children would never be placed below the vague notion of tribal sovereignty. Ultimately, we must move beyond procedure and seek substantive justice that aligns with the common good and human dignity.

“This case is about children who are among the most vulnerable: those in the child welfare system.” That is how Justice Barrett begins her majority opinion, and she is right. Brackeen arose out of a challenge to the ICWA. Enacted in 1978, the ICWA was meant to address the concern that a disproportionate number of native children were being forcibly removed from their homes and cultures through state foster care and child welfare systems.

In establishing federal standards for the removal and placement of native children, Congress sought to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902). However well intentioned the initial passage of the ICWA may have been, the current effect is that a native child is treated as less worthy of protection than any other child in America. Legal protections afforded to other children in foster care and adoption proceedings are removed, and native children are left in unsafe, neglectful homes. 

As described by the Goldwater Institute’s Vice President for Legal Affairs, Timothy Sandefur, the ICWA “forces state child protection officers to return abused children to the parents who have mistreated them, makes it harder to rescue them from neglect, and renders it next to impossible to find them the permanent, loving adoptive homes they need.” The act does this by supplanting the “best interests of the child” standard that applies in other adoption cases not involving native children and requiring a higher burden of evidentiary proof to remove a native child. 

The best interests of the child standard is aptly named. A court applying this standard would seek to determine what arrangement would be most beneficial to the child, often looking at factors such as the quality of the home environment, the financial and mental health status of the parents,  and any physical risks posed to the child. 

Under the ICWA, however, in order to remove a native child from the home, the state must prove by “clear and convincing evidence” that the continued custody of the child by the native parent is “likely to result in serious emotional or physical damage to the child,” and that “the parents cannot be persuaded to change their behavior.” The “clear and convincing” standard means that the government must present evidence that leaves one with a firm conviction or belief that it is highly probable the facts are true. Put in simpler terms, it falls somewhere between the preponderance of the evidence and the beyond a reasonable doubt standard. These alternative standards have led to devastating outcomes, including the tragic deaths of native children who suffered abuse, neglect, and violence due to the ambiguity if the statute and being placed in situations they should not have been.

So yes, Justice Barrett’s assessment is correct. Brackeen involves some of the most vulnerable among us, and yet the court’s ruling fails to protect native children and upholds the act, a move which threatens the health and safety of children. One can hardly blame the majority, our current system leaves little room for common sense in these cases. The fundamental result, however, is a disconnect between adjudicatory methods and justice. As Justice Alito correctly points out in his dissent, “the Court… decides one question after another in a way that disserves the rights and interests of these children and their parents.”

Despite the majority opinion recognizing and in fact sympathizing with the arguments advanced by those seeking to alter the ICWA, seven of nine justices came to the conclusion that our current system can do nothing to prevent the cruel outcomes that come from this law, further impacting one of the most vulnerable populations in the country. Illustrating this point, Justice Alito details a series of heartbreaking instances of native children and their experience under the act before asking the critical question: “Does the Constitution give Congress the authority to bring about such results?”

The answer surely must be no. As Augustine says in De libero arbitrio voluntatis, “that which is not just seems to be no law at all” (De Lib. Arb. i, 5). Aquinas continues in the Summa, “if in any point [a law] deflects from the law of nature, it is no longer a law but a perversion” (ST I-II, Q. 95, A. II). The ICWA is fatally unjust, and yet it remains valid because the current legal system binds judges into deciding cases like these not on their merits, but on procedural and structural rules. 

Through a variety of somewhat complex legal fictions, many cases face this type of fate in our current system. This act treats native children as less worthy of protection than other children, it makes it more difficult to remove victimized children from unsafe homes, and it has led to a loss of human life that is completely avoidable. What little discourse exists about Brackeen is focused not on this injustice, however. Rather, most commentators quibble about the finer points of the opinion without pausing to wonder why an unjust outcome is considered correct in our liberal system. 

It is imperative to see a harmony between the natural law and our body of positive law to protect the most vulnerable among us. We must reject the rigid, liberal system that instructs us to view perversions of law as faultless simply because the correct procedure was followed in their issuance.

The views expressed in this article are the opinion of the author and do not necessarily reflect those of The American Postliberal.