N. R., et al. v. Keith M. Ellison, Attorney General of Minnesota, et al.

The Indian Child Welfare Act (“ICWA”) and the Minnesota Indian Family Preservation Act (“MIFPA”) impose race-based rules that require protecting “Indian children” less than non-“Indian” children. When this Court declined to address the equal-protection challenge to ICWA in Haaland v. Brackeen, 599 U.S. 255, 294 n.10 (2023), it observed that non-”Indians” seeking to be an “Indian child’s” forever family would “[o]f course” have standing to bring that challenge in state court. Petitioners are those people. For more than a year, they provided foster care to two “Indian children” born with severe disabilities. ICWA/MIFPA derailed their permanency plans when the county moved the children to an Indian cousin, citing “ICWA/MIFPA” and Red Lake’s preference. Pet.App.314a. The Minnesota Court of Appeals majority recognized Petitioners’ standing, although it rejected their challenge. Pet.App.110a-127a. But then the District Court denied them intervention into the children’s case— in express part because they “motioned th[at] Court to find ICWA and MIFPA unconstitutional.” Pet.App.76a. The Minnesota Supreme Court affirmed and, citing that exclusion, refused to consider the constitutional challenge. Pet.App.20a, 31a-36a. Absent reversal, ICWA/MIFPA’s denial of equal protection will continue, and other states could follow Minnesota’s roadmap to try to evade this Court’s review. The questions presented are:

1. Whether ICWA and MIFPA unconstitutionally deny equal protection to “Indian” children and to non”Indian” people who seek custody of them.

2. Whether denying Petitioners intervention because of their good-faith argument that ICWA and MIFPA are unconstitutional violates the First Amendment.