Haaland v. Brackeen
Issues
Does the Indian Child Welfare Act discriminate based on race and commandeer state apparatuses in the adoption placements of Indian children?
Note: The authors mirror the parties’ and courts’ use of the terms “Indian” and “Indian child” as legal terms in this Preview.
This case asks the Supreme Court to determine whether the Indian Child Welfare Act (“ICWA”) violates the U.S. Constitution’s Fourteenth Amendment equal protection guarantee and contravenes anticommandeering principles rooted in the Tenth Amendment. Deb Haaland, Secretary of the United States Department of the Interior, argues that ICWA’s classification of “Indian child” is constitutional because the classification is political and tied to Congress’s “unique obligation” to Indian tribes. Haaland further contends that Congress has the power to regulate Indian child placement preferences under the Indian Commerce Clause. Chad Everet Brackeen asserts that ICWA’s classification of “Indian child” is race-based and violates the Equal Protection Clause. Brackeen also asserts that ICWA’s placement preferences exceed Congress’s authority by forcing state agencies to carry out federal laws. The outcome of this case has important implications for Indian children’s interests, tribal interests, and state sovereignty regarding the adoption proceedings of Indian children.
Questions as Framed for the Court by the Parties
1. Whether ICWA’s placement preferences— which disfavor non-Indian adoptive families in child- placement proceedings involving an “Indian child” and thereby disadvantage those children—discriminate 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. 393, 404 (1975)—and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.
In 1978, Congress enacted the Indian Child Welfare Act (“ICWA”) to protect American Indian children from widespread removal from their native families and communities and placement in non-Indian homes. Brackeen v. Haaland at 28–29. Prior to ICWA’s adoption, 25 to 35 percent of Indian children were removed from their families.
The authors would like to thank Professor Michael Sliger and Derril B. Jordan, Esq. for their guidance and insights into this case.
Additional Resources
- Andrew Chung, U.S. Supreme Court Takes Up Dispute over Native American Adoption Law, Reuters (Feb. 28, 2022).
- Bureau of Indian Affairs, Indian Child Welfare Act (ICWA), bia.gov (accessed Oct. 21, 2022).
- Joseph Guzman, What is the Indian Child Welfare Act at the Center of a New Supreme Court Case?, The Hill (Aug. 24, 2022).
- Nora Mabie, US Supreme Court to Hear Brackeen v. Haaland, a Case Challenging Indian Child Welfare Act, Great Falls Tribune (Feb. 28, 2022).