American Indian Tribal Semi-Sovereign Status and Adoption



American Indian tribes hold an exceptional legal status within the United States. As semi-sovereign entities, tribes have various rights, including enacting legislation, maintaining an independent judiciary, and governing their internal affairs. Still, tribal sovereignty has its bounds. As the Supreme Court describes, "Congress's authority to legislate with respect to Indians is … plenary within its sphere, but even a sizeable sphere has borders." The recent Supreme Court case of Haaland v. Brackeen explores Congress’s authority, specifically addressing the constitutionality of the Indian Child Welfare Act (“ICWA”), and represents a victory for American Indian tribes. 

To appreciate the gravity of the Court’s ruling, it is important to delve into the historical context that prompted Congress to enact ICWA in 1978. The United States implemented various policies concerning indigenous people starting with the founding of the country. Often, these policies led to unwilful relocation, separation of families, and loss of culture. Recognizing the harm these actions caused, Congress passed ICWA. This Act aimed to discuss past transgressions and protect the vitality of indigenous people’s way of life by ensuring Indian children remained within the ambit of their cultural nexus.

To meet its goals, ICWA sets a framework of preferred placements for custody proceedings involving Indian children. ICWA’s placement preferences can take precedence over the adoption preferences of a parent who voluntarily relinquishes custody of their child.

These preferences focus on placements with

  1. extended family members of the child,
  2. other members of the child’s tribe, or
  3. other Indian families in adoption.

Similarly, for foster care, preference is given to

  1. the child’s extended family,
  2. a foster home designated by the child’s tribe,
  3. an Indian foster home approved by a non-Indian licensing authority, and
  4. another institution approved by an Indian tribe or operated by an Indian organization, as long as it meets the child’s needs.

In Haaland v. Brackeen, the Supreme Court faced a legal dispute arising from ICWA's placement preferences. The non-Indian Brackeens, favored by the adoptive child's biological mother, sought to adopt A.L.M., an "Indian child" as defined under ICWA, despite opposition from the Navajo and Cherokee Nations. The case centered on two key legal questions: first, whether ICWA exceeds Congress's authority and encroaches upon state sovereignty, and second, whether the placement preferences outlined in ICWA entail racial discrimination in violation of the Equal Protection Clause.

In a 7 – 2 ruling, Justice Amy Coney Barret, joined by Justices Gorsuch, Jackson, Kagan, Kavanaugh, Roberts, and Sotomayor, delivered the majority opinion. On the first issue, the Supreme Court ruled ICWA rests with the purview of Congress’s power to regulate Indian affairs. The Court buttressed its reasoning by affirming an expansive interpretation of the Indian Commerce Clause which allows Congress “to regulate commerce … with Indian Tribes.” Commerce in this context “reach[es] not only trade, but certain ‘Indian affairs’ too.” Additionally, while acknowledging the ability to regulate domestic relations typically rests with the states, the Court rejected the notion that the "Constitution … erects a firewall around family law." Rather, state family law may be preempted "when Congress validly legislates pursuant to its Article I powers."

As for the equal protection issue, the Court did not rule on the merits since none of the parties had sufficient standing. Standing requires a genuine "injury in fact" likely to be redressed through judicial intervention. The Court notes that "enjoining the federal parties would not address the alleged injury, as state courts handle placement preferences, and state agencies execute court-ordered placements." An injunction would not provide the petitioners with legally enforceable protection against the alleged imminent harm. Still, the equal protection issue will likely be addressed by the Supreme Court. As Justice Kavanaugh so acknowledged in his concurrence, "[c]ourts, including ultimately this Court, will be able to address the equal protection issue when it is properly raised by a plaintiff with standing—for example, by a prospective foster or adoptive parent or child in a case arising out of a state-court foster care or adoption proceeding." 

While legal ambiguities remain, the Court’s ruling in Haaland v. Brackeen represents a definitive victory for American Indian tribes. This victory allows American Indians to continue protecting their culture, identity, and the protections ICWA affords. Moreover, the Supreme Court’s ruling confirms the importance of tribal sovereignty and the preservation of indigenous cultures, contributing to a narrative of reconciliation and national progress.

Summer Associate Michael Scheldrup is a contributing author.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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