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ICWA Under Attack: Supreme Court Hears Oral Argument for Haaland v. Brackeen, by Ryan Lolar, Indigenous Peoples Unit (IPU) Staff Attorney and Alida Pitcher-Murray, IPU Intern

February 17, 2023The Supreme Court heard a major case in November 2022 that may have ramifications for all of Indian Country. Haaland v. Brackeen, or simply Brackeen, is a case brought by an adoptive couple, the Brackeens, with support from several states and other petitioners that aims to dismantle the Indian Child Welfare Act (ICWA) and potentially more of Federal Indian law.

The Brackeen petitioners have three primary arguments:  

  1. The petitioners argue that ICWA is race-based and therefore violates equal protection under the Constitution, which prohibits discrimination because of race, gender, or ethnicity by the federal government under the Fifth Amendment and by state governments under the Fourteenth Amendment.

The petitioners argue that the placement preferences in ICWA are race-based and that they therefore violate equal protection. The placement preferences in ICWA prioritize adoptive placement of eligible Native children with (1) extended family, (2) another family within the child’s Tribal community, or (3) another Native family. The same section of ICWA also requires state child welfare agencies to communicate with a child’s Tribe to keep records of any placement and to work with the Tribe to determine the placement.

Federal Indian law, which specifically addresses Tribes and individual Tribal members, has long been understood to be politically based and not race-based. This is because Tribes are separate sovereigns from state and federal governments. Thus, laws affecting Tribes and Tribal members are based on the political status of the Tribal government or the Tribal citizen, not on their race. This principle was directly addressed and affirmed as constitutional by the Court in Morton v. Mancari in 1974 when the Court upheld the Bureau of Indian Affairs’ (BIA) hiring preference for Natives over non-Natives because of the political basis of the distinction.

The political basis of federal Indian law’s distinctions, including the placement preferences of ICWA, was addressed by the federal government’s arguments in support of ICWA. It was also discussed by the justices on the Court who are seen to be friendlier to Tribal interests. However, the more conservative justices on the Court seemed skeptical about whether this principle fully covered ICWA, and, particularly whether it covered the third placement preference of ICWA for “other Indian families.”

  1. The petitioners assert that ICWA goes beyond the power of Congress to regulate Indian affairs.

Under Article I of the U.S. Constitution, Congress has the power to “regulate Commerce … with … Indian Tribes” and under Article II, the Treaty Clause recognizes the role of Congress in enacting treaties. The Court has held that these provisions are parts of the source of Congress’ “plenary” or “absolute” authority over Indian affairs. The state of Texas, which is a party to the case in opposition to ICWA, argues that ICWA exceeds this authority because ICWA is about state child custody proceedings and does not invoke a treaty.

The argument about Congress’s powers is unlikely to be successful, although the thinking behind it is endorsed by at least one member of the Court. The principle of federal Indian law that Congress has plenary authority when it comes to legislation affecting Tribes has a strong foundation. The Court is unlikely to unroll the long-standing and well-supported principle of Congress’s plenary power, despite recent cases where the Court has seemingly reversed on precedent in other contexts.

  1. The petitioners argue that ICWA violates the anticommandeering doctrine.

The anticommandeering doctrine is a principle derived from the 10th Amendment to the U.S. Constitution that prevents the federal government from requiring states to enforce federal law. A famous example of this principle comes from Printz v. United States (1997), where the Court held that the 1993 Brady Act violated the anticommandeering doctrine because the federal act required state law enforcement officers to perform background checks before individuals bought firearms. Opponents to ICWA argue that this principle applies to ICWA and should invalidate it because ICWA requires state officials to, for example, create a record of where children are placed and make “active efforts” to reunify Native children with their families.

The Court did not seem particularly engaged with this argument, though some of the justices asked follow up questions suggesting they may believe the “active efforts” provision of ICWA violates anticommandeering. Other justices, who seemed to represent the majority, were more skeptical and seemed to reject the idea that anticommandeering applied.

What’s next?

The Supreme Court will likely release an opinion on the case later this year, which may address some or all the issues raised by supporters and opponents of ICWA. There continues to be concern throughout Indian Country about what the opinion will say as to equal protection and anticommandeering. Indeed, if the Court upholds these arguments, the ruling could upend federal Indian law by invalidating other important federal laws, regulations, and programs that benefit Tribes.

However, there is a strong likelihood that the Court does not hold in the favor of ICWA’s opponents and instead chooses to uphold the long history of federal Indian law that supports ICWA as it is. The Court has made several positive decisions for Tribes in recent terms, with the exception being Oklahoma v. Castro-Huerta (2022). In addition, many well-respected advocates believe that if the Court does accept any of the anti-ICWA arguments, it will do so in a limited fashion that may be addressable through states passing their own ICWA legislation. Some states like Michigan and Washington already have their own ICWA laws, and a bill is proposed for this legislative session in Maine that may implement a state ICWA law here. Please note that as of the publication of this article, no language for the bill has been made public.

Finally, Brackeen is an impressive moment of collective action throughout Indian Country and from allies across the United States. In appellate court cases, amici curiae (or “friends of the court”) can write briefs in support of positions that are being argued before the Court to provide additional support or information. The advocates from the United States and Tribal Nations that were before the Court received additional briefs in support from other Tribes, law professors, state child welfare agencies, and nonprofit organizations, who all came together to stand up for ICWA.

Pine Tree Legal Assistance, Inc. and the Indigenous Peoples Unit are proud to be a signatory of the National Indigenous Women’s Resource Center’s (NIWRC) amicus brief, which is available at this address:

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