This summer, in Haaland v. Brackeen,[1] the U.S. Supreme Court affirmed the validity of the Indian Child Welfare Act (ICWA)[2] in a 7-2 opinion. More specifically, the court determined that neither the anti-commandeering doctrine nor a presumption that states handle domestic family matters invalidated the act, as the authority regulating Native Americans is squarely dedicated to Congress by the Constitution. However, the high court sidestepped the question of whether ICWA violates the equal protection clause or delegation powers of Congress due to a lack of standing among the parties.[3] Although some claim “the equal protection issue remains undecided,”[4] the Brackeen decision 1) explained the Constitutional authority for ICWA, 2) rejected the anti-commandeering arguments but 3) determined the equal protection and nondelegation questions were not raised by the appropriate parties at that time. Each part of Brackeen is addressed in turn:

1) THE U.S. SUPREME COURT AFFIRMS THE VALIDITY OF ICWA AND REJECTS THE STATE-DOMESTIC RELATIONS CARVE-OUT

The main theory of the petitioners (the folks opposing ICWA) suggested that ICWA infringes on state jurisdiction concerning family law, [5] as domestic relations are traditionally state-governed. That argument, however, does not have textual support, as the Constitution does not create a special barrier around family law to be reserved to the states. To that point, prior rulings already recognized that Congress can displace state court jurisdiction in adoption proceedings involving Indian children pursuant to the Indian commerce clause.[6] Undeterred, the petitioners urged the Supreme Court to adopt an implicit limitation upon the Indian commerce clause, contending that it only permits legislation regarding Indian tribes as governmental entities, not as individuals, as it relates to trade or commerce – not family relations. This line of argument – that Indian children are not commodities – was deemed rhetorically compelling but legally irrelevant.[7]

Petitioners' strategic error was framing their arguments as if the interpretation of the Indian commerce clause was starting from scratch. There have been 2 1/2 centuries of the federal government being exclusively able to regulate relations with tribes, including among Indian families under the Indian commerce clause – ICWA itself has been in force for almost 50 years. Petitioners were, consequently, unable to present a theory to rationalize existing law or otherwise explain how ICWA exceeds Congress's authority per the current precedent. Therefore, the argument to disturb the 5th Circuit's conclusion that ICWA aligns with Article I was declined.

But, by raising this argument, the petitioners ironically pushed the court to clearly explain the constitutional foundation for ICWA. The majority opinion emphasized that the plenary power of Congress over Indian affairs, including its power to regulate commerce with the Indian tribes, gave it the constitutional foundation to pass ICWA. This power, in turn, justified ICWA's placement preferences, which prioritize the adoption of Indian children by Indian families or other Indian parties. While the court previously allowed ICWA to survive in Holyfield and Baby Girl,[8] Brackeen offers an explanation as to how this court views the breadth and power of Congress over Indian affairs:

We have often sustained Indian legislation without specifying the source of Congress's power, and we have insisted that Congress's power has limits without saying what they are. Yet petitioners’ strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law ­– that would at least give us something to work with. Instead, they frame their arguments as if the slate were clean. More than two centuries in, it is anything but. If there are arguments that ICWA exceeds Congress's authority as our precedent stands today, petitioners do not make them.[9]

2) THE U.S. SUPREME COURT REJECTS THE ANTI-COMMANDEERING CLAIM 

Brackeen was initially decided in favor of the act by the U.S. 5th Circuit Court of Appeals.[10] The circuit, however, undertook an en banc review[11] and reversed in part:[12]

Petitioners’ Tenth Amendment arguments effectively succeeded across the board. The Fifth Circuit held that §1912(d)’s “active efforts” requirement, §1912(e)’s and §1912(f )’s expert witness requirements, and §1915(e)’s recordkeeping requirement unconstitutionally commandeer the States. Ibid. It divided evenly with respect to the other provisions that petitioners challenge here: §1912(a)’s notice requirement, §1915(a) and §1915(b)’s placement preferences, and §1951(a)’s recordkeeping requirement. Ibid. So the Fifth Circuit affirmed the District Court's holding that these requirements, too, violate the Tenth Amendment.

The anti-commandeering clause, consequently, became a focal point as the federal government cannot generally force state government employees or agents to fulfill federal policies. But Justice Barrett upheld the federal government’s promise to protect Indian children as she broke down and rejected the anti-commandeering argument in three parts:

1. First, petitioners challenged the foundations of ICWA: “the requirements that an initiating party demonstrate ‘active efforts’ to keep the Indian family together; serve notice of the proceeding on the parent or Indian custodian and tribe; and demonstrate, by a heightened burden of proof and expert testimony, that the child is likely to suffer ‘serious emotional or physical damage’ if the parent or Indian custodian retains custody.”
2. Second, “[t]hey claim that Congress can neither force state agencies to find preferred placements for Indian children nor require state courts to apply federal standards when making custody determinations.”
3. “Third, they insist that Congress cannot force state courts to maintain or transmit to the Federal Government records of custody proceedings involving Indian children.”[13]

The first argument failed because “active efforts,” as required by ICWA, applies to “any party” to an involuntary proceeding, not only state agencies.[14] Anti-commandeering does not apply when the rule being enforced is not directed against a sovereign but merely falls upon them coincidentally as a party to litigation. Petitioners argued that while the rules were not directed to states, they were primarily aimed at state agencies or agents as involuntary proceedings to terminate parental rights were brought by the state. The court rejected this argument because under ICWA, nonstate parties, like prospective adoptive parents or family members, may also initiate involuntary proceedings in court. In fact, the last ICWA case before the Supreme Court, Adoptive Couple v. Baby Girl, 570 US 637 (2013), was an involuntary proceeding initiated by the prospective adoptive parents.

The second argument also lacked legs as the petitioners challenged the “diligent search” to find an appropriate home under ICWA.[15] There, the court again noted that the requirement is not exclusive to states, making anti-commandeering inapplicable. Expanding on that theme, however, the court added that state judges who undertake jurisdiction over Indian children are bound by the supremacy clause regardless: “[W]hen Congress enacts a valid statute pursuant to its Article I powers, state law is naturally preempted to the extent of any conflict with a federal statute. End of story.”[16]

The petitioners’ final argument was to challenge the act’s requirement that proceeding records be maintained and provided to the secretary of the Interior, pursuant to ICWA. The court, however, found that recordkeeping is ancillary (and thus permitted) to the underlying and valid law, and Congress has regularly required state courts to maintain certain records as needed.[17] “[T]hey are a logical consequence of our system of ‘dual sovereignty’ in which state courts are required to apply federal law.”[18]

Having taken the anti-commandeering clause to task, it is clear that ICWA operates under authority conferred to Congress by Article 1 of the Constitution – most specifically the Indian commerce clause, which applies to Indian affairs with individual tribal members – and state courts are required to comply when they undertake a legal proceeding with an Indian child involved. The fact that the state, like any party, has additional requirements imposed upon it is not an anti-commandeering violation. For those reasons, the clause is simply inapplicable.

3) EQUAL PROTECTION AND NONDELEGATION CHALLENGES LACK STANDING

In an important procedural decision, the court ruled that the petitioners lacked standing to challenge the equal protection and nondelegation aspects of ICWA. The majority found that both individuals and the state of Texas could not demonstrate a concrete injury that was directly traceable to ICWA and could be redressed by the requested relief. Petitioners' claims of unequal treatment in the adoption or fostering of Indian children were dismissed by the court, noting that they could not demonstrate that their alleged injury would be redressed by judicial relief. Alternatively stated, the state officials who enforced ICWA in the Brackeen case were not a party to the case argued to the Supreme Court. Furthermore, the court held that Texas did not have standing to challenge the placement preferences, as it does not possess equal protection rights nor can it assert such rights on behalf of its citizens.

CONCLUSION

In conclusion, the Supreme Court’s opinion affirmed Congress's authority to enact ICWA and reversed the Northern District of Texas order. This nuanced decision reinforces the long-established authority of Congress over Indian affairs while upholding the principle of state sovereignty. While the core provisions of ICWA remain intact, the ruling leaves room for reconsideration of how federal Indian law interacts with state autonomy and agency. The decision is a reminder of the intricate balance of power between federal, state and tribal authorities in the complex field of Indian law. On that day, Indian country won.

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ABOUT THE AUTHOR

Austin R. Vance is an attorney at Whitten Burrage and past chair of the OBA Indian Law Section.

 

 

 

 

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ENDNOTES

[1] Haaland v. Brackeen, 599 U.S. 255, 143 S. Ct. 1609, 216 L.Ed 2d 254 (2023).

[2] 25 U.S.C. §§1901 et seq.

[3] See generally id.

[4] Id. at 1661 (J. Kavanaugh, concurring). The underlying opinion of the Northern District of Texas issued in Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018), attempted to revitalize the rightfully abandoned legal theory that tied Indian status to observable conduct and biological race, rather than Indian status being a political classification of citizenship. See Austin Vance, “For the Children: Indian Status is a Political Classification,” OBJ vol. 91, no. 2, at 12 (February 2020), available at https://bit.ly/46J4hxx.

[5] Technically, the secretary of the Interior is also styled as a petitioner, but the court references the Brackeen family and others as petitioners throughout the opinion. Haaland v. Brackeen, 599 U.S. 255, 143 S. Ct. 1609, 1616, 216 L. Ed. 2d 254 (2023) (“Petitioners—a birth mother, foster and adoptive parents, and the State of Texas—filed this suit in federal court against the United States and other federal parties.”).

[6] Haaland v. Brackeen, 143 S. Ct. 1609, 1630, 216 L. Ed. 2d 254 (2023) (“[T]he Constitution does not erect a firewall around family law. On the contrary, when Congress validly legislates pursuant to its Article I powers, we “ha[ve] not hesitated” to find conflicting state family law preempted, ‘[n]otwithstanding the limited application of federal law in the field of domestic relations generally.’ Ridgway v. Ridgway, 454 U.S. 46, 54, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981) (federal law providing life insurance preempted  state family-property law); see also Hillman v. Maretta, 569 U.S. 483, 491, 133 S.Ct. 1943, 186 L.Ed.2d 43 (2013) (“state laws ‘governing the economic aspects of domestic relations ... must give way to clearly conflicting federal enactments’ (alteration in original).” (also citing Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U.S. 382, 390, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (per curiam)).

[7] Further arguments asserted that ICWA can't be sanctioned by principles inherent in the Constitution's structure, limiting them to matters of war and peace. Petitioners also pointed out that ICWA doesn't implement a federal treaty. The petitioners criticized precedents for being inconsistent with the Constitution's original meaning. However, they offered no account of how their argument integrates with established case law, nor did they discuss potential consequences of their position.

[8] See generally Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989) and Adoptive Couple v. Baby Girl, 570 U.S. 637, 133 S. Ct. 2552, 186 L. Ed. 2d 729 (2013).

[9] Haaland v. Brackeen, 143 S. Ct. 1609, 1631 (2023).

[10] Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019).

[11] Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021).

[12] Haaland v. Brackeen, 143 S. Ct. 1609, 1627 (2023).

[13] Haaland v. Brackeen, 143 S. Ct. 1609, 1631-32 (2023).

[14] Id. at 1632.

[15] Id. at 1633.

[16] Id. at 1635.

[17] Id. at 1636-37.

[18] Id. at 1638.