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. Brief for Petitioner, Federal Parties at 3.
ICWA imposes federal mandates on state courts and agencies regarding adoption proceedings involving Indian children. Brackeen v. Haaland at 28–29. Under 25 U.S.C. 1903(4), “Indian child” is defined as any “unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” Id. at 29–30. Under 25 U.S.C. § 1915(a) and (b), state courts and agencies must follow ICWA’s order of adoption priorities such that the Indian child is placed with “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” Id. at 30–31. Under 25 U.S.C. § 1912(d), state agencies must make “active efforts” to prevent the breakup of Indian families. Id. Under 25 U.S.C. § 1915©, state courts must make and maintain indefinite records “evidencing the efforts to comply with” ICWA’s placement preferences. Id. at 31. Under 25 U.S.C. §§ 1911(c) and 1912(a), state courts must also notify the tribe associated with an Indian child about any adoption proceedings and allow the tribe time to intervene. Id. at 75.
In October 2017, seven individuals (“Individual Respondents”), including the Brackeens, a non-Indian couple, the States of Texas, Indiana, and Louisiana (“State Respondents”) filed in the United States District Court for the Northern District of Texas (the “District Court”) against the United States, the Department of the Interior, the Department of Health and Human Services, the Bureau of Indian Affairs, and various federal officials including Deb Haaland and the United States Secretary of the Interior (“Federal Petitioners”). Id. at 36. The Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians (“Tribal Petitioners”) intervened as defendants. Id. at 35–36.
The Respondents claimed that ICWA violates the Equal Protection Clause of the Fourteenth Amendment and exceeds Congress’s Article I powers. Id. at 2. The Petitioners refuted Respondents’ claims and contended that Respondents have no standing. Id. The District Court found that Respondents had standing and held that ICWA was unconstitutional because it exceeded Congress’s authority and violated the Equal Protection Clause. Id.
On appeal, a three-judge panel of the United States Court of Appeals for the Fifth Circuit reversed the District Court’s decision. Id. at 36. The Fifth Circuit later granted an en banc rehearing of the case and affirmed in part and reversed in part the District Court’s decision, affirming that the Respondents have standing to assert equal protection violations and challenge ICWA’s constitutionality. Id. at 3, 6. While the Fifth Circuit reasoned that ICWA’s first two placement preferences under U.S.C. §§ 1915(a) and (b) do not violate equal protection, it found the third placement preference of “other Indian families” unconstitutional. Id. at 3–4. The Fifth Circuit also determined that Congress has the authority to enact ICWA, and that the “active efforts” requirements under 25 U.S.C. § 1912(d) and recordkeeping requirements under 25 U.S.C. § 1915(e) are unconstitutional. Id. at 3, 4.
The Supreme Court granted certiorari on February 28, 2022 and consolidated this case for briefing and oral argument with Cherokee Nation v. Brackeen (21-377), Texas v. Haaland (21-378), and Brackeen v. Haaland (21-380).
CLASSIFYING “INDIAN CHILD” UNDER THE EQUAL PROTECTION CLAUSE
Tribal & Federal Petitioners argue that ICWA’s classification of an “Indian child” is political and therefore subject to rational basis review. Brief for Petitioner, Tribal Parties at 51; Brief for Petitioner, Federal Parties at 55. Federal Petitioners contend that Indian children are either potential or enrolled citizens of a tribal nation. Brief for Federal Parties at 69. Federal Petitioners further emphasize that tribal benefits are not conferred based on race, but on the parent’s involvement in a political community. Brief for Tribal Parties at 60. Further, Tribal Petitioners note that tribal nations have often included members who do not satisfy an Indian racial category. Brief for Tribal Parties at 54–55. For instance, Tribal Petitioners highlight that many Tribes granted citizenship to the Freedmen—non-Indian previously enslaved persons. Id.
Tribal Petitioners note that under rational basis review, ICWA “‘will not be disturbed’ ‘[a]s long as the special treatment can be tied rationally to the fulfillment of Congress’s unique obligation towards the Indians.” Brief for Tribal Parties at 51. Tribal Petitioners further assert that ICWA is not overbroad and is rationally tied to Congress’s “unique obligation” towards Indian people. Id. at 67–68. Tribal Petitioners argue that ICWA’s categories reflect political decisions by tribal nations to extend membership to children, and the parent’s decision to maintain such membership. Brief for Tribal Parties at 60.
Additionally, Tribal Petitioners contend that ICWA demands more than the naked claim that some distant relative of an individual was racially an “Indian.” Id. at 62. Tribal Petitioners emphasize that ICWA instead requires tight, present-day political ties to a specific Tribal Nation. Id. In sum, Tribal Petitioners argue that ICWA’s political placement preferences are rationally related to Congress’s goal regarding the well-being of Indian Nations. Id. at 51.
Brackeen responds that ICWA’s classification of an “Indian child” is racial and therefore subject to strict scrutiny review. Reply Brief for Respondent, Chad Brackeen, et al. at 3, 9. Brackeen argues that ICWA’s definition includes not just tribal nation citizens, but also any child eligible for membership and having “Indian blood.” Id. at 4. Brackeen contends such a classification is racial because of its “plainly stated racial purpose.” Id. at 3. Further, Brackeen argues that Congress’s willingness to place the child with any other Tribal Nation before all other non-Indian placements shows that the categorization is racial. Id. at 9.
Brackeen contends that ICWA does not apply to the adopted non-Indian children of Indian people, even though such children could be raised on a reservation in the culture. Id. at 21. Brackeen further notes that one of ICWA’s provisions that places children with entirely different tribes, over other non-Indian adopters, “in no way advance[s] the ‘integrity’ of a different Indian tribe.” Brief for Respondent, Chad Brackeen at 43. Texas stresses that strict scrutiny requires a compelling government interest and a narrow means of achieving this goal. Reply Brief for Petitioner, Texas at 18. Texas posits that even if ICWA’s purpose of preserving Indian communities and culture is legitimate, ICWA is not narrowly tailored to achieve this purpose. Id. at 19. Texas underscores that Indian children can still “learn their heritage even when not placed in Indian homes.” Id.
Brackeen asserts that ICWA would also fail rational-basis review because the statute’s classification system “does not rationally further tribal self-government.” Reply Brief for Brackeen at 21. Lastly, Brackeen argues that ICWA is both under- and over-inclusive. Brief for Brackeen at 44. For instance, Brackeen contends that ICWA excludes those Indian children raised in their Nation’s culture—but lack the requisite blood quantum to qualify for citizenship—while including those children raised outside their Nation’s culture. Id.
CONGRESS’S AUTHORITY TO ENACT ICWA & THE INDIAN COMMERCE CLAUSE
Tribal Petitioners argue that many Constitutional powers, including the Indian Commerce Clause, can support congressional authority to enact ICWA. Brief for Tribal Parties at 27. For instance, Tribal Petitioners maintain that the Indian Commerce Clause exists so that Congress may protect broad interactions between Indian and non-Indian entities. Id. at 19. Tribal Petitioners elaborate that the Indian Commerce Clause authorizes Congress to regulate intercourse, not just money, between Indians and non-Indians. Id. at 24. Tribal Petitioners emphasize that this plenary power was meant to be for the care and benefit of Indian Nations. Id. at 19. In the case at hand, Tribal Petitioners argue that Congress oversees adoption proceedings to prevent the removal of Indian children from their communities. Id. at 25.
Brackeen acknowledges that the constitution gives Congress the power to “regulate Commerce . . . with Indian tribes.” Brief for Brackeen at 47. However, Brackeen argues that ICWA oversteps this power when it regulates adoption preferences. Id. at 46. Regarding the Indian Commerce Clause, Brackeen contends that the meaning of “commerce” cannot encapsulate adoption placements. Reply Brief for Brackeen at 29–30. Brackeen emphasizes that Congress is allowed to regulate trade and commerce with Indian Tribes, but not allowed to regulate every affair involving Indian people. Brief for Brackeen at 49. Texas agrees with Brackeen and further argues that the use of the word “commerce” is narrow—only referring to items such as merchandise—not children. Reply Brief for Texas at 5–6.
ADOPTION PROCEEDINGS UNDER ICWA AND THE ANTI-COMMANDEERING & NON-DELEGATION DOCTRINES
Haaland posits that ICWA does not violate anti-commandeering principles rooted in the Tenth Amendment. Reply Brief for Petitioner, Deb Haaland at 3. Haaland also argues that Congress may require the states to follow federal law where the federal government is enforcing substantive rights to protect private individuals. Id. at 2–3. Tribal Petitioners further contend that Congress requires states to conform to federal adoption practices as a means of protecting the private rights of Indian children and Indian parents. Brief for Tribal Parties at 79.
The Federal Petitioners also emphasize that ICWA does not delegate legislative power. Brief for Federal Parties at 80. The Federal Petitioners argue that ICWA merely applies the law of another sovereign—a practice that Congress has often allowed. Id.
Brackeen contends that ICWA violates the anti-commandeering doctrine. Brief for Brackeen at 46–47. Under the anti-commandeering doctrine, Brackeen argues that Congress may not force state courts and state institutions to implement federal law. Id. at 46. Brackeen asserts that ICWA unconstitutionally mandates states to follow federal rules regarding the placement of children in state adoption proceedings. Id. at 47.
Brackeen also argues that ICWA violates the non-delegation doctrine because ICWA regulates the conduct of state courts in adoption proceedings, not private individuals such as the Indian children or families. Id. at 69–70.
STANDING TO CHALLENGE ICWA’S CONSTITUTIONALITY
Haaland argues that neither Brackeen nor Texas have standing to challenge ICWA’s constitutionality. Brief for Haaland at 3. Tribal Petitioners assert that Brackeen lacks an “actual or imminent” injury in fact and faces “no impending injury.” Brief for Tribal Parties at 46. Tribal Petitioners point out that the adoption cases at issue—and any harm they caused—have ended. Id. at 47.
Additionally, Tribal Petitioners and Federal Petitioners conclude that Texas cannot bring its suit because states cannot assert an equal protection violation, as states are not individual persons. Id. at 50; Brief for Federal Parties at 48. Further, Haaland maintains that Texas may not sue under parens patriae. Brief for Haaland at 9. Haaland argues that states are only allowed to sue other states, and do not have standing to sue the federal government. Brief for Haaland at 9.
Brackeen argues that their claim is not moot just because their adoption proceeding concluded; Brackeen contends that they have standing to sue because they intend to foster or adopt additional children in the future. Reply Brief for Brackeen at 26–27. Brackeen asserts that ICWA regulations affect Individual Respondents by restricting their adoption options—an action forbidden under the Administrative Procedure Act (“APA”). Id. Even if the Supreme Court finds no standing under the APA, Brackeen argues that they deserve declaratory and injunctive relief as they have been injured in fact by ICWA’s adoption restrictions. Id. at 27. Lastly, Brackeen contends that the injuries suffered by the adoptive families are traceable to the actions of the federal government. Id. at 28.
Texas also argues that it has standing because Texas is experiencing an injury through the financial burden of expensive child custody proceedings and the sovereign injury of implementing ICWA’s preferences “in a racially biased manner.” Reply Brief for Texas at 13.
CONCERNS OVER THE BEST INTEREST OF INDIAN CHILDREN
The State of California, along with twenty-three other states, and the District of Columbia (collectively, “California”), in support of Petitioners, assert that ICWA serves the best interest of Indian children by significantly reducing unwarranted removals and improving the placement stability of Indian children. Brief of Amici Curiae State of California et al. ("California"), in Support of Petitioners at 5. The National Indigenous Women’s Resource Center and eighty-eight public-services-related organizations (collectively, “NIWRC”), in support of Petitioners, stress that ICWA’s procedural safeguards especially benefit Indian girls. Brief of Amici Curiae National Indigenous Women’s Resource Center et al., in Support of Petitioners at 14–15. NIWRC emphasizes that Indian girls are significantly more likely than non-Indian children to fall victim to human trafficking when placed in state run foster homes. Id.
American Academy of Pediatrics and American Medical Association, in support of Petitioners, contend that ICWA serves the best interest of Indian children by placing them in tribal communities because the supportive relationships in the tribes often create positive childhood experiences, thereby building attachment, healing, and resilience. Brief of Amici Curiae American Academy of Pediatrics and American Medical Association, in Support of Petitioners at 5. 180 Indian Tribes and 35 Tribal Organizations (collectively, “Indian Tribes”), in support of Petitioners, stress that Indian children removed from Indian families may suffer social and psychological consequences. Brief of Amici Curiae 180 Indian Tribes and 35 Tribal Organizations ("Indian Tribes"), in Support of Petitioners at 15.
Foster Parents, N.B. and S.B., and Pacific Legal Foundation, in support of Respondents, counter that ICWA does not serve the best interest of Indian children because ICWA places the tribal community’s needs to preserve its identity over the individual needs of Indian children. Brief of Amici Curiae Foster Parents and Pacific Legal Foundation, in Support of Respondents at 19. The Foster Parents and Pacific Legal Foundation explain that ICWA placement preferences presume that Indian tribes can always serve the best interest of Indian children and deprive Indian children of the best-interest analysis on a case-by-case inquiry in the custody proceedings. Id. at 19.
The Goldwater Institute, Texas Public Policy Foundation, and Cato Institute (collectively, the “Goldwater Institute”), in support of Respondents, contend that ICWA harms the best interest of Indian children by giving Indian children a unique disadvantage in finding permanent and loving homes. Brief of Amici Curiae Goldwater Institute et al. ("Goldwater Institute"), in Support of Respondents at 4–6. For instance, as the Goldwater Institute points out, ICWA’s “active efforts” requirements can force states to return children to homes that are known to be dangerous. Id.
BALANCING TRIBAL INTERESTS AND STATE INTERESTS
The Indian Tribes, in support of Petitioners, argue that ICWA prevents states from harming tribal interests. Brief of Indian Tribes at 12–14. For example, the Indian Tribes maintain that prior to ICWA, states frequently disregarded tribal interests by misunderstanding Indian culture and mistakenly finding Indian parents negligent. Id.
The Casey Family Programs and ten other child welfare and adoption organizations (the “Casey Family Programs”), in support of Petitioners, assert that ICWA benefits the states by helping the states achieve better outcomes in their adoptive systems. Brief of Amici Curiae Casey Family Programs, in Support of Petitioners at 22. The Casey Family Programs explain that ICWA requirements significantly increase the rate of kinship placements, which strengthen the children’s community and benefit the states. Id.
California, in support of Petitioners, contends that ICWA benefits both tribes and states by facilitating state-tribal cooperation. Brief of California at 8. California maintains that ten states had used the authority under ICWA to enter into agreements with thirty-seven tribes in child custody proceedings. Id. at 7. California further contends that overturning ICWA will inevitably undermine the positive results that U.S. states and indigenous tribes have achieved. Id. at 11.
The Goldwater Institute, in support of Respondents, counters that ICWA’s requirements harm state interests by telling state judges how to enforce state laws. Brief of Goldwater Institute at 29. The Goldwater Institute points out that ICWA’s evidentiary standards contain no “good cause” exception, which means that ICWA commands state judges to employ ICWA’s evidentiary standards even if the application is contrary to state public policy. Id. at 33–34.
The States of Ohio and Oklahoma, in support of Respondents, counters that ICWA harms state interests by regulating domestic affairs. Brief of Amici Curiae States of Ohio and Oklahoma, in Support of Respondents at 19. Ohio and Oklahoma maintain that child custody proceedings are traditionally within the states’ exclusive authority and ICWA unconstitutionally impairs the states’ traditional sovereignty by regulating these proceedings. Id. at 28.
- 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).