OPINION ANALYSIS

Supreme Court upholds Indian Child Welfare Act

In a major ruling on Thursday, the Supreme Court rejected a challenge to the constitutionality of the Indian Child Welfare Act, a 1978 federal law that seeks to keep Native American children with Native American families. By a vote of 7-2, the court ruled that Congress had the power to enact the law, and it rebuffed arguments that the law violates the 10th Amendment’s “anticommandeering” doctrine, which bars the federal government from requiring states to adopt or enforce federal law. The court declined to reach two other claims, including an argument that ICWA discriminates based on race, explaining that neither the individuals challenging the law nor the state of Texas have standing – that is, a legal right to bring the lawsuit in the first place.

Justice Amy Coney Barrett wrote for the majority, in a 34-page opinion joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Justices Clarence Thomas and Samuel Alito each filed separate dissents.

Congress passed ICWA in response to a long and tragic history of separating Native American children from their families. ICWA addresses this history by establishing minimum standards for the removal of Native American children from their families, as well as a preference that Native American children who are removed from their families be placed with extended family members or in Native foster homes. The law gives tribal courts exclusive jurisdiction over child-custody proceedings involving Native children who live or have their permanent residence on tribal land. However, ICWA’s minimum standards apply in child-custody proceedings in state court for the millions of Native American children who do not live on tribal land.

Thursday’s ruling in Haaland v. Brackeen and three consolidated cases began as a dispute filed in federal court in Texas by Texas and seven individuals: three couples who are not Native American who had tried to foster or adopt children with Native American ancestry, as well as the biological mother of a Native American child whom one of the couples, Chad and Jennifer Brackeen, eventually adopted. Four tribes later joined the case to defend the law.

The federal district court ruled for the plaintiffs, holding that ICWA is unconstitutional, but a three-judge panel of the U.S. Court of Appeals for the 5th Circuit reversed. A ruling by the full 5th Circuit that partly affirmed and partly reversed the panel’s decision prompted four different petitions for Supreme Court review, from the Biden administration, Texas, the individual challengers, and the tribes. The justices agreed in February 2022 to take up the case and heard arguments last November.

Barrett began her opinion for the court by observing that the issues in the case “are complicated — so for the details, read on.” “But the bottom line,” she continued, “is that we reject all of [the] challenges to the statute, some on the merits and others for lack of standing.”

Barrett first considered – and dismissed – the challengers’ contention that ICWA goes beyond the power that the Constitution gives Congress in Article I, which authorizes Congress to “regulate Commerce” “with the Indian Tribes.” Congress has broad – although not unlimited – power to enact laws with respect to Native Americans, Barrett explained. And although family law has traditionally been the domain of the states, Barrett acknowledged, Congress can supersede that law, just as it did in ICWA.

Barrett next rejected the challengers’ anticommandeering arguments. Two of those arguments relate to provisions in ICWA that impose requirements in involuntary proceedings to place a child in foster care or terminate parental rights and to a provision dictating placement preferences for Native American children. The challengers contended that the provisions required state and local government agencies to provide services, in violation of the 10th Amendment. But Barrett identified a “fundamental flaw” in that argument – specifically, that the requirements applied to “private individuals and agencies as well as government entities.”

Barrett was equally unpersuaded by the challengers’ third anticommandeering argument, which stems from the recordkeeping requirements that ICWA imposes on state courts. Although, Barrett wrote, the challengers “argue that Congress cannot conscript the States into federal service by assigning them recordkeeping tasks,” the Constitution actually does allow Congress to do precisely that, as a “logical consequence of our system of ‘dual sovereignty’ in which state courts are required to apply federal law.”

The court did not reach two of the challengers’ arguments — that ICWA’s placement preferences violate the Constitution’s guarantee of equal protection, which generally bars the government from discriminating based on race, gender, or ethnicity, and that a provision allowing the tribes to adopt their own preferences for the placement of Native American children unconstitutionally delegates legislative power to the tribes.

Barrett agreed that the adoptive parents had alleged an injury – racial discrimination – from the placement preferences. But that is still not enough to sue, she continued, because state courts and state officials – rather than the federal officials who are defendants in this case – implement ICWA, so that a ruling in the challengers’ favor would not actually “remedy the alleged injury.”

Texas also did not have a right to challenge the placement preferences, Barrett continued, because it does not have any rights under the equal protection clause, and it cannot come to court to vindicate its citizens’ equal protection rights.

Gorsuch, who in his six years on the court has arguably been the court’s strongest champion of Native American sovereignty, wrote a separate concurring opinion that was joined in part by Sotomayor and Jackson. Gorsuch recounted, in detail, the history that led to ICWA’s enactment – including the federal government’s efforts to destroy tribal identity and force assimilation through its boarding school initiative for Native American children and the promotion of adoption of Native American children by non-Native families.

Gorsuch praised the court’s decision as “further steps in the right direction.” But he expressed hope that the court would “follow the implications of today’s decision where they lead and return us to the original bargain struck in the Constitution — and, with it, the respect for Indian sovereignty it entails.”

Kavanaugh penned a brief concurring opinion in which he emphasized that although he joined the Barrett opinion, the court had not weighed in on the equal protection issue, which he characterized as a “serious” one. “Under the Act,” he observed, “a child in foster care or adoption proceedings may in some cases be denied a particular placement because of the child’s race — even if the placement is otherwise determined to be in the child’s best interests.” “And,” he continued, “a prospective foster or adoptive parent may in some cases be denied the opportunity to foster or adopt a child because of the prospective parent’s race. Those scenarios raise significant questions under bedrock equal protection principles and this Court’s precedents,” Kavanaugh concluded, and courts can address them when they are “properly raised by a plaintiff with standing.”

In his 40-page dissent, Thomas characterized the dispute before the court as arising from “the Federal Government’s attempt to regulate child-welfare proceedings in state courts” – which, he said, “should raise alarm bells.” In enacting ICWA, he contended, Congress “has so clearly intruded upon a longstanding domain of exclusive state power,” without any authorization from the Constitution. Indeed, he noted, the Supreme Court “has never upheld a federal statute that regulates the noncommercial activities of a U.S. citizen residing on lands under the sole jurisdiction of States merely because he happens to be an Indian. But that is exactly what ICWA does.”

Alito’s 11-page dissent agreed with Thomas that Congress lacked the authority to enact the provisions of ICWA at issue in the case, but he had a slightly different focus. Those provisions, Alito wrote, “effectively ‘nullify’ a State’s authority to conduct state child custody proceedings in accordance with its own preferred family relations policies, a prerogative that States have exercised for centuries.” “Congress’s Indian affairs power,” Alito emphasized, “broad as it is, does not extend that far.”

In a statement issued shortly after the decision, leaders for the Native American tribes involved in the case hailed the ruling as a “major victory for Native tribes, children, and the future of our culture and heritage.” The decision was also, they said, “a broad affirmation of the rule of law, and of the basic constitutional principles surrounding relationships between Congress and tribal nations.”

This article was originally published at Howe on the Court.