On June 15, 2023, the U.S. Supreme Court handed down a significant victory to supporters of the Indian Child Welfare Act (ICWA) in Haaland v. Brackeen.
In a 7-2 majority opinion authored by Justice Amy Coney Barrett, the court confirmed the constitutionality of ICWA on multiple grounds, affirming in part and overturning in part, a decision from the U.S. Court of Appeals for the Fifth Circuit, which had ruled portions of the law unconstitutional.
For ICWA supporters and Indian law practitioners, this case was a significant victory—an adverse outcome was anticipated to mark the beginning of efforts to dismantle tribal sovereignty. Justice Gorsuch’s concurrence provides hope that a majority of the justices understand that the “Constitution reserves for the Tribes a place—an enduring place—in the structure of American life,” and a promise of “sovereignty for as long as they wish to keep it.”
While this victory is extremely notable, the door is not closed to future equal protection challenges.
History of Forced Assimilation and the ICWA
Congress enacted ICWA in 1978 to stop the forced assimilation of Native American children by putting in place several important safeguards that apply to adoption and foster care proceedings in state courts.
Beginning in the late 1800s, the federal government adopted aggressive assimilation policies, including establishment of boarding schools for Indian children, often located hundreds of miles away from the children’s home reservation. These children were punished for speaking their native languages and practicing their culture. There were cases of abuse, and many children never returned home.
In addition to federal policies, states also participated in assimilation practices by systematically placing children in need of foster care or adoptive homes with non-Indians. Congress passed the ICWA after finding that during the 1950s through 1970s more than one-third of all native children had been removed from their homes, and of those children, the vast majority were placed with non-Indian families and institutions.
To reverse the course, the ICWA requires a preference for placement of Indian children in foster or adoptive care proceedings first with a member of the child’s family, other members of the child’s tribe or other Indian families.
Context on the Brackeen Case
In 2017, a non-Indian couple from Texas, the Brackeens, sought to adopt two Navajo siblings who were in their foster care. The Navajo Nation objected to the adoptions. The Brackeens, along with other plaintiffs, filed a suit in federal court challenging ICWA’s constitutionality on two grounds. First, they asserted that Congress violated the anti-commandeering principle of the 10th Amendment. Second, they argued that ICWA employed a racial classification that unlawfully prevented non-Indian families from fostering or adopting Indian children.
The U.S. District Court sided with the challengers in 2018 on the racial discrimination claim. On appeal, a Fifth Circuit panel reversed and found that ICWA’s placement preference was based on a household’s political status as members of a sovereign nation, not on the basis of the household’s racial status. However, the full circuit court struck down other parts of ICWA under the anti-commandeering arguments.
The U.S. Supreme Court granted certiorari and consolidated the Brackeens’ case with two others.
State Action in Anticipation of Threats to ICWA
Awaiting a ruling from the U.S. Supreme Court, at least 14 states enacted their own ICWA laws: if the court were to uphold the Fifth Circuit decision that ICWA violated anti-commandeering principles under the Tenth Amendment, these states would continue to administer ICWA under state, rather than federal, authority.
Details and Implications of the Decision
On June 15, 2023, the Supreme Court delivered a 7-2 opinion in Brackeen and upheld ICWA, a significant decision affirming tribal sovereignty.
- Justice Amy Coney Barrett delivered the opinion of the court, which was joined by Justices John Roberts, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson.
- Justice Gorsuch filed a concurring opinion joined in part by Justices Sotomayor and Jackson.
- Justice Kavanaugh filed a concurring opinion. Justices Clarence Thomas and Samuel Alito filed dissentingopinions.
10th Amendment Anti-commandeering: On the 10th Amendment anti-commandeering argument, the Supreme Court explained that Congress is clearly entitled to regulate issues of family law, adding that Texas and the other ICWA challengers were trying to create a “constitutional carveout” simply because the U.S. government does not typically wade into such affairs.
The statute also doesn’t compel state action in violation of the 10th Amendment, the high court found, noting that ICWA applies to public and private child-welfare proceedings.
That makes a commandeering claim—as the challengers have raised—a “heavy lift,” Justice Barrett wrote, and they “have not pulled it off.”
Had the Supreme Court invalidated ICWA on anti-commandeering grounds, that decision would have invalidated the important protections ICWA provides to Indian children, Indian families and tribal nations. However, it is important to note that a more devastating outcome could have occurred if the court decided that ICWA violated equal protection.
Equal Protection: The equal protection issue seemed well settled. In 1974, the Supreme Court considered a similar equal protection challenge to the Bureau of Indian Affairs implementation of a hiring preference for Indian people. A group of non-Indian employees brought suit arguing that the preference amounted to prohibited racial discrimination. In Morton v. Mancari, 417 U.S. 535 (1974), the court found that hiring preference was not race-based, but rather, based on an Indian person’s political status with a sovereign Indian tribe. Since that time, Congress has passed a number of critical pieces of legislation affecting Indian tribes and their citizens all within its power to legislate Indian affairs. Thus, had Brackeen invalidated ICWA on equal protection grounds, the entire field of Indian law and policy would have been severely called into question, or worse, would have marked the beginning of lawsuits aimed at dismantling tribal sovereignty.
However, in examining the equal protection challenges to ICWA’s placement preferences, the Supreme Court dismissed this claim on standing. Petitioners argued that ICWA impermissibly discriminated against non-Indian families through ICWA’s hierarchy of placement preferences. However, the individual petitioners did not include state departments of family services in the lawsuit (the suit only included federal defendants), and thus the court found that their alleged injuries could not be redressed by judicial relief, and thus dismissed the equal protection argument on technical grounds.
The “equal protection issue is serious”: Justice Kavanaugh issued a short concurrence where he stated that the “equal protection issue is serious.” He stated that under ICWA, “a child in foster care or adoption proceedings may … 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.” Further, he describes a foster or adoptive family being denied to adopt a child because of the “prospective parent’s race” and states that these scenarios raise significant questions under bedrock equal protection principles.
Indian status is a political classification: By contrast, Justice Gorsuch’s concurrence provided a detailed account of the history of Indian assimilation policies and the need for ICWA. He also provided historical context of pre-Revolution relations between the British Crown and tribes who were viewed and treated as their own nations. These concepts, he explains, are in the Constitution that followed that reflected an understanding that tribes enjoy a power to rule themselves that no other power may usurp. Specifically, he cited Mortion v. Mancari and “the bedrock principle that Indian status is a ‘political rather than racial’ classification.”
While Brackeen leaves the door open for future equal protection challenges (with proper state family services agencies included as parties in ICWA litigation), Justice Gorsuch’s extensive concurrence provides hope that the majority of the justices understand that federal Indian law was not created in a vacuum and, more importantly, that the “Constitution reserves for the Tribes a place—an enduring place—in the structure of American life,” and a promise of “sovereignty for as long as they wish to keep it.”