Whether ICWA's placement preferences violate the U.S. Constitution by disadvantaging non-Indian adoptive families on the basis of race

QUESTIONS PRESENTED State child-custody proceedings generally are governed by state law, with placement decisions based on the child’s best interests. The Indian Child Welfare Act of 1978 (ICWA”), 25 U.S.C. §§ 1901-1963, however, dictates that, in any custody proceeding “under State law” involving an “Indian child,” “preference shall be given” to placing the child with “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families” rather than with non-Indian adoptive parents. Id. § 1915(a); see also id. § 1915(b). The en banc Fifth Circuit fractured over the constitutionality of the placement preferences, affirming in part the lower court’s decision striking them down as unconstitutional. The questions presented are: 1. Whether ICWA’s placement preferences— which disfavor non-Indian adoptive families in childplacement proceedings involving an “Indian child” and thereby disadvantage those on the basis of race in violation of the U.S. Constitution. 2. Whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement—the “virtually exclusive province of the States,” Sosna v. Iowa, 419 U.S. 398, 404 (1975)—and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.