Yesterday, June 15, 2023, the Supreme Court of the United States upheld the constitutionality of the Indian Child Welfare Act (ICWA) in the Haaland v. Brackeen case. The decision affirms the political government-to-government relationship between Indian tribes and the United States. Justice Amy Coney Barrett delivered the opinion, Justice Neil Gorsuch delivered a strong concurring opinion, and Justices Clarence Thomas and Samuel Alito were the only dissenters. The opinion is available here.
This long-awaited opinion is a substantial victory for the protection of Indian children, culture, and families, and also affirms some of the most important foundations of federal Indian law. The decision affirmed the Fifth Circuit’s holding that ICWA is consistent with Article I authority in the United States Constitution, rejected an anticommandeering challenge based on the Tenth Amendment, and held that the parties lacked standing to bring equal protection challenges to ICWA’s placement preferences.
Enacted in 1978, ICWA was intended to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” 25 U.S.C. § 1902. ICWA was enacted in response to the Federal government’s history of taking Indian children from their families and communities, resulting in generations of Indian children losing language, culture, and traditions. Separating Indian children from their families and communities continued well into the Twentieth Century prior to the enactment of ICWA.
In Brackeen, a non-Indian family in Texas wanted to adopt a Navajo child over the objections of the Navajo Nation. The case was consolidated with other cases that concerned two other child custody proceedings in Louisiana and Indiana and brought before the United States District Court for the Northern District of Texas. In 2018, the Northern District of Texas held that ICWA was unconstitutional. See Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018). The Fifth Circuit Court of Appeals reversed that decision by a three-judge panel. On rehearing before the full court, the Fifth Circuit issued several competing opinions. Overall, the Fifth Circuit upheld ICWA and the “political” as opposed to “racial” foundation of ICWA. However, portions of the opinion also undermined federal requirements imposed on state agencies in ICWA cases. See Brackeen v. Bernhardt, 942 F.3d 287 (5th Cir. 2019). Oral arguments were held in November 2022 before the United States Supreme Court.
After 7 grueling months, the Supreme Court upheld the constitutionality of ICWA. In Justice Gorsuch’s concurring opinion, he stated that “In affirming the constitutionality of the Indian Child Welfare Act (ICWA), the Court safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties. In the process, the Court also goes a long way toward restoring the original balance between federal, state, and tribal powers the Constitution envisioned.” Haaland v. Brackeen, 599 U.S. __, Case No. 21-376, slip op. at 1-2 (June 15, 2023), (Gorsuch, J. concurring).