The Right Side of History: The Supreme Court’s Support of Indian Child Welfare and Tribal Sovereignty in Haaland v. Brackeen

Dec 9

By Megan King

I. INTRODUCTION

Many people became aware of Canada’s residential school system for First Nations children when the remains of 215 Indigenous children were discovered in British Columbia where a school once stood.[1] The horrifying discovery was made in May of 2021,[2] garnering both media attention and national shame.[3] Symbolically, this unearthing should remind us that “[t]he past is never dead. It’s not even past.”[4] The methods of removing Indigenous children from their families and severing their cultural ties may have changed, but the practice persists to this day.[5] To illustrate, Canada’s last residential school for First Nations children did not close its doors until 1998,[6] and in the United States, “Indigenous children are [still] three times more likely to be removed from their families” than their non-Indigenous counterparts.[7]

Unlike the news-making discovery in Canada, the United States’ own sordid history in relation to Indigenous children has inspired fewer public reckonings. Beginning in the latter half of the nineteenth century, the United States government adopted an assimilationist policy toward Native Americans—a policy which sought to eradicate Native American cultural traditions, particularly through the education of Native American children.[8] Indian[9] boarding schools became a means by which federal government officials attempted to achieve their goal, and the “model” among these boarding schools, the Carlisle Indian Industrial School, opened in Pennsylvania in 1879.[10] From that point until the middle of the twentieth century, officials acting under congressional orders—at times coercively, at others forcefully—carried out the systematic removal of Native American children from their families.[11] These boarding schools operated on the principle that “[a]ll the Indian there is in the race should be dead. Kill the Indian in him, and save the man.”[12] Needless to say, these policies of separating Native American children from their families and their cultures had wide-ranging and devastating effects, not only on the children and their families, but also on the tribes themselves.[13]

In the mid-twentieth century, the boarding school system gave way to the Bureau of Indian Affairs’ Indian Adoption Project, a project with goals no less insidious than those of the boarding schools.[14] The Indian Adoption Project “promote[d] adoption of Native children from sixteen western states by white adoptive families in the East.”[15] Because non-Indigenous people staffed the courts and agencies that were tasked with enacting these child welfare policies, a lack of cultural understanding[16] often led social workers and courts to determine that Native American children should be removed from their families.[17] Additionally, social workers often justified the removal of Native American children based on conditions on the reservation; therefore, in a tragically ironic twist, “some Indian families, ‘forced onto reservations at gunpoint,’ were later ‘told that they live[d] in a place unfit for raising their children.’”[18] In the 1960s and 1970s, “approximately 25–35 per cent of all Indian children [were] separated from their families,”[19] and more than 90% of these children were placed with non-Indian families.[20]

Against this historical backdrop, Congress passed the Indian Child Welfare Act (“ICWA”) in 1978.[21] Congress recognized that the removal of Native American children affected an “alarmingly high percentage” of Native American families and that state and private agencies placed many of these children in non-Native homes.[22] Congress enacted ICWA to address this historical problem, acknowledging that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”[23] As Justice Gorsuch succinctly explained, ICWA “installs substantive and procedural guardrails against the unjustified termination of parental rights and removal of Indian children from tribal life.”[24]

Prior to deciding Haaland v. Brackeen, the Supreme Court had adjudicated only two challenges to the Indian Child Welfare Act.[25] In Haaland, plaintiffs’ challenge to ICWA represented a particularly explosive threat to Native American child welfare and tribal sovereignty, and a decision in favor of plaintiffs would have undermined over 200 years of federal policy and Supreme Court jurisprudence related to Congress’s exclusive authority to regulate interactions with federally recognized Indian tribes.

Part II of this Note outlines the facts, holding, and complicated procedural history of this litigation. Part III focuses on the legal background of the case, specifically the Court’s Indian law jurisprudence since the nineteenth century, Congress’s constitutional authority to legislate in regard to Native American affairs, the sources of this authority, and the specific provisions of the Indian Child Welfare Act. Part IV outlines the Court’s decision, and Part V presents analysis of the Court’s decision, its import, and a brief picture of the future of ICWA litigation. The Court’s decision in Haaland v. Brackeen represents a decisive victory in favor of Native Americans’ tribal sovereignty and their very right to exist.

II. FACTS AND HOLDING

Writing for the Supreme Court majority in Haaland v. Brackeen, Justice Barrett opened the opinion by presenting the stakes of the litigation in broad strokes: “[t]his case is about children who are among the most vulnerable: those in the child welfare system.”[26] Haaland arose out of three separate adoption proceedings involving children who were eligible for membership in American Indian tribes, and hence were considered Indian children for the purposes of the Indian Child Welfare Act.[27] One adoption proceeding involved the Brackeens, a couple comprising two of the individual plaintiffs. The plaintiffs sought to adopt A.L.M., a child whose biological mother belonged to the Navajo Nation and whose father was an enrolled member of the Cherokee Nation.[28] Days after his birth, A.L.M.’s biological mother took him to live with his paternal grandmother in Texas.[29] Child Protective Services removed A.L.M. from his grandmother’s custody when he was ten months old, at which point the agency placed him in foster care with the Brackeens, a white, non-Indian couple.[30]

Because A.L.M.’s biological parents belonged to federally recognized Indian tribes, the Indian Child Welfare Act governed the foster placement.[31] However, because the Texas Department of Family and Protective Services failed to identify an ICWA-preferred foster placement for the child, A.L.M. remained in the Brackeens’ foster care for sixteen months before they petitioned to adopt him.[32] A.L.M.’s biological parents and paternal grandmother supported the Brackeens’ attempt to adopt the child.[33] Because the Brackeens are white non-Indians, they were not among the preferred placements outlined by ICWA, but following the Act’s provisions, the Texas court allowed the Brackeens the opportunity to show good cause for deviating from these preferences.[34] Meanwhile, the Navajo and Cherokee Nations were notified of the adoption proceeding in accordance with ICWA, and they located a potential alternative placement for A.L.M. with Navajo Nation members in New Mexico.[35] When the Texas state court denied the Brackeens’ adoption petition, the Brackeens filed suit in the Northern District of Texas, and the potential Navajo adoptive parents withdrew.[36] The Brackeens successfully adopted A.L.M. in January 2018.[37]

The Librettis and the Cliffords faced similar challenges when they sought to adopt Native American children.[38] These two couples joined the Brackeens as plaintiffs, as did Altagracia Hernandez, the biological mother of the child whom the Librettis adopted, along with the states of Texas, Louisiana, and Indiana.[39] Plaintiffs challenged ICWA and the Bureau of Indian Affairs’ promulgated regulations on multiple constitutional grounds against the United States and other federal executive departments and agencies.[40] Additionally, multiple tribal nations intervened as defendants in the litigation.[41]

In district court, plaintiffs claimed that certain provisions of ICWA and the Bureau of Indian Affairs’ Final Rule[42] violated the Constitution, in addition to violating the Administrative Procedure Act.[43] Regarding their constitutional claims, plaintiffs brought challenges against these provisions, arguing that (1) ICWA’s placement preferences rely on racial classifications and hence “violate the Fifth Amendment’s guarantee of equal protection under the laws”;[44] (2) specific sections of ICWA and the Final Rule violate Article I’s nondelegation doctrine;[45] (3) certain sections of ICWA violate the Tenth Amendment’s anti-commandeering doctrine;[46] (4) the Final Rule promulgated by the Bureau of Indian Affairs in 2016 violates the APA;[47] and (5) Congress exceeded its constitutionally enumerated powers in enacting ICWA.[48] Plaintiffs sought a declaratory judgment that certain provisions of ICWA and the Bureau of Indian Affairs’ Final Rule were unconstitutional on their face.[49]

The Northern District of Texas granted plaintiffs’ motions for summary judgment in regard to all claims except for the individual plaintiffs’ substantive due process claims.[50] Initially, the Fifth Circuit affirmed the district court’s holding that plaintiffs had standing to bring the causes of action, but they reversed the district court’s grant of summary judgment and rendered a ruling in favor of defendants.[51] On rehearing of the case en banc, however, the Fifth Circuit was divided, with the majority affirming in part and reversing in part the district court’s judgment.[52]

The Supreme Court granted certiorari and heard oral arguments in November of 2022.[53] In its opinion from June 15, 2023, a Supreme Court majority held that (1) Congress did not exceed its constitutionally enumerated powers when it enacted ICWA,[54] (2) the challenged provisions of ICWA do not violate the Tenth Amendment’s anticommandeering doctrine,[55] and (3) neither the individual nor state plaintiffs had standing to bring equal protection or nondelegation claims against the federal defendants.[56]

III. LEGAL BACKGROUND

To say that the history of the relationship between the United States and Native American tribes is complicated is an understatement. While the federal government’s policies toward Native Americans have shifted dramatically over the past two and a half centuries, the British policies that were in effect prior to the Revolutionary War formed the basis for this political and legal relationship.[57] The Supreme Court has located Congress’s broad and exclusive power to legislate in regard to Indian affairs in both pre-constitutional and constitutional sources.[58] However, even when it has deemed Congress’s power over Indian affairs “plenary and exclusive,” the Court has been careful to delimit this authority by firmly situating it among the enumerated powers granted by the Constitution—namely the Indian Commerce Clause and the Treaty Clause—and by recognizing its constitutional limits.[59] In the context of Indian law, the balance between federal and state sovereignty has frequently become a tug-of-war, and proponents of state sovereignty in this arena have invoked both the Tenth Amendment’s anticommandeering doctrine and the Constitution’s Equal Protection Clause when challenging federal legislation governing Indian affairs.[60] The Indian Child Welfare Act represents one of the federal statutory schemes that has been challenged on these grounds, so this Act’s provisions are outlined in detail in Section D below. An introduction to the the Act will provide a better understanding of the plaintiffs’ constitutional challenges to ICWA and of the Court’s decision in Haaland v. Brackeen.

A. THE UNITED STATES LARGELY ADOPTED BRITISH POLICIES TOWARD NATIVE AMERICAN TRIBES AFTER THE REVOLUTION.

When Great Britain and other European nations began to colonize North America, forming alliances with the Indigenous peoples became a matter of political expedience.[61] To protect the lands it claimed, Great Britain bestowed gifts on Native American tribes and entered treaties with them in order to keep the peace and, more importantly to its imperialistic mission, to secure these tribes’ loyalties and prevent them from allying with other European nations who might rival British claims.[62]

Generally speaking, Great Britain and the other colonial powers recognized Native American tribes as sovereigns: “They all treated with the Indians for what they wanted but would not or could not attain for themselves, and by the act of treating implicitly recognized the sovereignty and autonomy of Native American polities.”[63] Subsequent to the Proclamation of 1763, the British policy toward Indigenous tribes reserved the right of treaty-making and land acquisition exclusively to the Crown, as opposed to colonial governments, and sought to prevent colonists from encroaching on Native American lands or purchasing such lands directly from Native American nations.[64]

Because Great Britain recognized the sovereignty of the Indigenous tribes with which it dealt (at least on paper) and sought to regulate only the tribes’ relations with other European nations and colonists, it did not attempt to regulate the tribes’ internal affairs or their self-government.[65] In Worcester v. Georgia, Chief Justice Marshall wrote the following: “[O]ur history furnishes no example . . . of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who . . . might seduce them into foreign alliances.”[66]

Near the beginning of the American Revolution, colonies began to form independent alliances with Indigenous nations, a practice which gained paramount importance because the colonists feared that these tribes would fight against them on behalf of the British.[67] The Continental Congress, and ultimately the United States government, largely inherited their Indian policies from the British model.[68] “Far from advancing a claim to their lands, or asserting any right of dominion over them, [C]ongress resolved ‘that the securing and preserving the friendship of the Indian nations appears to be a subject of the utmost moment to these colonies.’”[69] In 1778, the United States began entering treaties of its own, the first of which was a treaty with the Delawares.[70] The legacy of British colonial policies toward Native Americans influenced the United States’ policies in another concrete way: the power and authority to deal with Indigenous tribes and to regulate such interactions was vested exclusively in the federal government, with residual sovereignty left to the tribes.[71] In practice, however, this avowed sovereignty equated to federal control over Native Americans.

B. THE CONSTITUTION AND SUPREME COURT JURISPRUDENCE GRANT CONGRESS THE EXCLUSIVE AUTHORITY TO LEGISLATE INDIAN AFFAIRS.

The brief, and necessarily broad, historical backdrop outlined above helps to frame the judiciary’s interpretation of Congress’s constitutional authority to regulate intercourse with Native Americans. In a long line of jurisprudence, the Supreme Court has characterized Congress’s authority to regulate the affairs of American Indian tribes as “plenary and exclusive.”[72] The Court has located the grounds of this power in both constitutional and pre-constitutional sources: (1) the Constitution’s Indian Commerce Clause,[73] (2) the Constitution’s Treaty Clause,[74] and (3) the “special relationship” that exists between Indigenous tribes and the United States.[75]

The United States Constitution’s Commerce Clause expressly grants Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”[76] While the Constitution grants the power to enter into treaties to the President, not to Congress, the Supreme Court has held that such treaties “can authorize Congress to deal with ‘matters’ with which otherwise ‘Congress could not deal.’”[77] Historically, treaties formed the basis of the political and legal relationship between the federal government and Indigenous tribes.[78]

The Court has also acknowledged congressional obligations arising out of the unique relationship between Native American tribes and the federal government.[79] While the Court’s conception of this relationship and Congress’s policies toward the tribes have shifted over time, the Court has consistently recognized the “Government’s trust obligation toward the Indian tribes.”[80] The Constitution reserves no powers to the states in legislating or dealing with tribal affairs.[81] This authority is vested exclusively in the federal government.

C. THE CONSTITUTION PLACES LIMITS ON CONGRESS’S “PLENARY” POWER IN REGARD TO NATIVE AMERICAN AFFAIRS.

The branches of the federal government can exercise only those powers specifically enumerated and granted in the Constitution, and the Tenth Amendment reserves all residual powers to the states,[82] thus creating a system of “dual sovereignty.”[83] One mechanism by which the Constitution limits Congress’s legislative powers vis-à-vis the states rests in what has come to be called the anticommandeering principle.[84] Based on this principle, which is implied by the Tenth Amendment and inherent in the federal structure laid out in the Constitution, Congress shall not command the states to legislate in a particular way; in other words, the Constitution does not grant Congress the power to “conscript state governments as its agents.”[85] However, “[l]egislation that applies ‘evenhandedly’ to state and private actors does not typically implicate the Tenth Amendment.”[86]

D. CONGRESS EXERCISED ITS LEGISLATIVE POWER IN ENACTING THE INDIAN CHILD WELFARE ACT.

The Indian Child Welfare Act includes provisions that control both procedural and substantive aspects of child custody proceedings that involve Indian children.[87] Under ICWA, a “child custody proceeding” refers to any proceeding that involves a “foster care placement,” a “termination of parental rights,” a “preadoptive placement,” and/or an “adoptive placement” of an Indian child.[88] The statute defines “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”[89]

ICWA grants an Indian tribe exclusive jurisdiction over any child custody proceeding that involves an Indian child “who resides or is domiciled within the reservation of such tribe,”[90] or when “an Indian child is a ward of a tribal court,” regardless of the child’s residence or domicile.[91] When an Indian child does not reside on his tribe’s reservation, the tribe and the state have concurrent jurisdiction over proceedings involving foster placement or termination of parental rights.[92] However, the state court must transfer the proceeding to the tribe’s jurisdiction “in the absence of good cause to the contrary” when either of the child’s parents, the child’s Indian custodian, or the child’s tribe petitions the court as such, “absent objection by either parent.”[93] When a state court exercises jurisdiction over a child custody proceeding involving an Indian child, the court shall follow ICWA’s substantive procedures,[94] and in cases of foster care placement or termination of parental rights, the child’s tribe and Indian custodian retain the right “to intervene at any point in the proceeding.”[95] Section 1911 of ICWA also includes a full faith and credit clause.[96]

ICWA governs both involuntary and voluntary child custody proceedings heard in state court.[97] In an involuntary proceeding for the foster placement of, or termination of parental rights to, an Indian child, the party who initiates the proceeding must notify the child’s parent or Indian custodian and the child’s tribe, and the parent or custodian and tribe have the right to intervene.[98]

ICWA further provides that an indigent Indian parent or custodian has “the right to court-appointed counsel in any removal, placement, or termination proceeding.”[99] The Act also includes important procedural safeguards for involuntary proceedings:[100] for example, any party that initiates an involuntary foster care placement proceeding or attempts to terminate parental rights to an Indian child under state law must establish that “active efforts” were made to prevent the dissolution of the Indian family, but that such measures were unsuccessful.[101] Accordingly, no involuntary foster care placement shall be made “in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”[102] In involuntary proceedings to terminate parental rights, the evidentiary burden is raised to “beyond a reasonable doubt.”[103]

Section 1913 of ICWA governs voluntary child custody proceedings concerning foster care placements or termination of parental rights.[104] This section provides, in part, that a “parent or Indian custodian may withdraw consent to a foster care placement under State law at any time and, upon such withdrawal, the child shall be returned to the parent or Indian custodian.”[105] A parent of an Indian child may also withdraw consent to a voluntary adoptive placement or termination of parental rights “for any reason at any time prior to the entry of a final decree of termination or adoption . . . and the child shall be returned to the parent.”[106] Finally, an Indian child’s parent may withdraw consent to an adoptive placement of the child for up to two years after the final decree of adoption has been entered in state court when “that consent was obtained through fraud or duress.”[107] Any parent or Indian custodian and the Indian child’s tribe may also collaterally attack “any action for foster care placement or termination of parental rights under state law . . . upon a showing that such action violated any provisions of sections 1911, 1912, and 1913 of this title.”[108]

In addition to the statute’s procedural requirements, ICWA includes substantive provisions. Section 1915 outlines placement preferences that state courts shall follow in the case of adoptive placements and foster care or preadoptive placements.[109] For an “adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”[110] In cases of foster care or preadoptive placements, the court shall follow similar placement preferences, “in the absence of good cause to the contrary.”[111]

In the case of either type of placement—adoptive or preadoptive—“if the Indian child’s tribe shall establish a different order of preference by resolution, the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child,” and “[w]here appropriate, the preference of the Indian child or parent shall be considered.”[112] The Indian Child Welfare Act also imposes recordkeeping requirements on state courts.[113]

IV. THE COURT’S DECISION

The Court upheld the Indian Child Welfare Act’s constitutionality, concluding specifically that (1) Congress did not exceed its constitutional authority by enacting a federal statutory scheme that supplants state law in child welfare proceedings involving Indian children,[114] (2) various ICWA provisions do not violate the Tenth Amendment’s anticommandeering doctrine,[115] and (3) none of the plaintiffs had standing to bring challenges against ICWA on equal protection grounds.[116] Justice Barrett wrote the Court’s opinion for the majority, whereas Justices Gorsuch and Kavanaugh authored separate concurrences, and Justices Thomas and Alito wrote individual dissents.[117] Ultimately, in upholding ICWA’s constitutionality on all grounds, the majority helped to further two of ICWA’s coextensive goals: to protect Indian children and to preserve what remains of tribal sovereignty.[118]

A. CONGRESS DID NOT EXCEED ITS ARTICLE I AUTHORITY IN ENACTING THE INDIAN CHILD WELFARE ACT.

The majority opinion relies on the longstanding, jurisprudential characterization of “Congress’s power to legislate with respect to the Indian tribes as ‘plenary and exclusive.’”[119] The Court locates Congress’s authority vis-à-vis Native American tribes in the Indian Commerce Clause and the Treaty Clause,[120] also emphasizing the fact that “the Federal Government has ‘charged itself with moral obligations of the highest responsibility and trust’ toward Indian tribes.”[121]

Plaintiffs based their claim principally on the argument that family law has traditionally fallen squarely under the states’ authority; therefore, plaintiffs claimed that Congress lacked the authority to pass ICWA because the statute’s provisions govern legal proceedings in the area of family law, thus extending federal power into the states’ domain.[122] In response, the Court reasoned that “[p]etitioners are trying to turn a general observation (that Congress’s Article I powers rarely touch state family law) into a constitutional carveout (that family law is wholly exempt from federal regulation),” an argument which the Court called a “non-starter.”[123]

The majority held that “the Constitution does not erect a firewall around family law,” but instead, the Court has established that congressional statutes related to family law preempt state law, provided that the statutes were validly enacted under Congress’s Article I powers.[124] Historically, this has been particularly true in cases dealing with Indian children.[125] Plaintiffs also argued that Congress lacked the authority to “regulate custody proceedings for Indian children,” but the majority opinion concluded that because plaintiffs bore the burden of establishing ICWA’s unconstitutionality, and because plaintiffs had failed to “grapple with [the Court’s] precedents,” they had not borne that burden.[126]

Principally, plaintiffs focused on the Indian Commerce Clause and contended that in this case, it could not authorize Congress’s power to enact ICWA because child welfare proceedings fall outside the realm of “commerce.”[127] More specifically, plaintiffs argued that the Indian Commerce Clause grants Congress the authority “to legislate only with respect to Indian tribes as government entities, not Indians as individuals.”[128] Supreme Court jurisprudence has firmly established that the term “commerce” in the Indian Commerce Clause extends beyond the simple buying and selling of goods, encompassing Indian affairs and intercourse between members of federally recognized tribes and nonmembers.[129] In this vein, plaintiffs made an additional argument that Congress’s authority to regulate Indian affairs more broadly “extend[s], at most, to matters of war and peace.”[130] The majority summarily dismissed this claim because plaintiffs failed to acknowledge the Court’s precedents.[131] Finally, according to plaintiffs, the Treaty Clause cannot authorize ICWA because the statutory scheme “does not implement a federal treaty.”[132] The Court held that the argument was essentially irrelevant because in enacting ICWA, Congress did not base its power on the Treaty Clause, nor did the Fifth Circuit uphold ICWA’s constitutionality on this ground.[133] Ultimately, the Court “decline[d] to disturb the Fifth Circuit’s conclusion that ICWA” represents a valid exercise of Congress’s Article I power.[134]

B. THE INDIAN CHILD WELFARE ACT DOES NOT VIOLATE THE TENTH AMENDMENT’S ANTICOMMANDEERING DOCTRINE.

The majority held that ICWA does not pose an anticommandeering problem because the Act’s provisions apply indiscriminately to state and private actors who initiate child custody proceedings.[135] Likewise, the Court concluded that ICWA’s placement preferences do not commandeer the states but instead preempt state law in accordance with the Supremacy Clause.[136]

1. THE CONTESTED PROVISIONS DO NOT VIOLATE THE ANTICOMMANDEERING DOCTRINE BECAUSE THEY APPLY EVENLY TO STATES AND PRIVATE ACTORS.

First, plaintiffs challenged ICWA on the grounds that the notice, “active efforts,” and recordkeeping requirements violated the anticommandeering doctrine.[137] Section 1912 of ICWA requires “the party seeking the foster care placement of, or termination of parental rights to, an Indian child” to give notice to the child’s parent or Indian custodian and the child’s tribe in an involuntary child custody proceeding.[138] Additionally, the party must also prove that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.”[139]

Plaintiffs argued that these provisions unconstitutionally commandeered the states.[140] The Court explained that in order to prevail on their anticommandeering argument, plaintiffs had to demonstrate that Section 1912(d) enlists a state’s legislative authority to enforce a federal regulatory scheme.[141] The Court reasoned that the clear and unambiguous language of the provision applies to “any party” seeking the foster care placement or termination of parental rights, not just the state government.[142] “A demand that either public or private actors can satisfy is unlikely to require the use of sovereign power.”[143] Accordingly, the majority held that ICWA does not present an anticommandeering problem.[144]

2. THE INDIAN CHILD WELFARE ACT’S PLACEMENT PREFERENCES DO NOT CONSTITUTE COMMANDEERING BUT INSTEAD PREEMPT CONFLICTING STATE LAW UNDER THE SUPREMACY CLAUSE.

The plaintiffs also challenged ICWA’s placement preferences, arguing that they commandeer state agencies “to perform a ‘diligent search’ for placements that satisfy ICWA’s hierarchy.”[145] First, the majority concluded that Section 1915, which outlines the placement preferences, applies equally to state and private actors and does not “demand[] the use of state sovereign authority.”[146] More importantly, however, “Section 1915 does not require anyone, much less the States, to search for alternative placements.”[147] Instead, the party that objects to a state court’s placement—which would often be the child’s tribe—has the burden of proposing a more suitable placement.[148] The Court acknowledged that ICWA requires state courts to abide by the placement preferences outlined in Section 1915, but held that this requirement does not pose a commandeering problem.[149] Instead, it simply serves as a valid “federal ‘direction’ of state judges” under the Supremacy Clause.[150]

3. THE INDIAN CHILD WELFARE ACT’S RECORDKEEPING REQUIREMENTS DO NOT VIOLATE THE TENTH AMENDMENT.

The final anticommandeering challenge raised by plaintiffs focused on ICWA’s recordkeeping requirements in § 1915(e) and 1951(a).[151] Plaintiffs argued that such recordkeeping requirements should be distinguished from rules of decision, but the majority opinion ultimately held that Congress does not violate the Tenth Amendment when it requires state courts to keep records.[152]

C. PLAINTIFFS DID NOT HAVE STANDING TO CHALLENGE THE INDIAN CHILD WELFARE ACT UNDER THE EQUAL PROTECTION CLAUSE.

The Court found that neither the individual plaintiffs nor the State of Texas had standing to bring their Equal Protection and nondelegation claims.[153] The individual plaintiffs claimed that the placement preferences outlined in Section 1915(a)-(b) of ICWA violate the Equal Protection Clause because they privilege Indian parents over non-Indian parents in foster and adoption proceedings of Indian children.[154] The Court reasoned, however, that the individual plaintiffs did not have standing to bring a claim for injunctive and declaratory relief against the federal defendants.[155] First, the individual plaintiffs sought to enjoin the federal defendants from enforcing ICWA, and they also requested a declaratory judgment ordering that the contested provisions were unconstitutional.[156] The Court explained that such remedies would not redress the alleged injury because state courts and agencies, not the federal defendants, are the parties responsible for enforcing ICWA’s placement preferences.[157]

The Court concluded that injunctive relief would not provide plaintiffs with protection “from the allegedly imminent harm.”[158] Likewise, a declaratory judgment would be “powerless to remedy the alleged harm” for the same reason (i.e., because the states are not parties to the suit); therefore, the declaratory judgment would not have binding, preclusive effect on the states, and hence would be “little more than an advisory opinion.”[159]

The Court also held that Texas lacked standing to bring equal protection and nondelegation challenges against the federal defendants.[160] First, as a state, Texas “has no equal protection right of its own,” nor can it bring “equal protection claims on behalf of its citizens because ‘[a] State does not have standing as parens patriae to bring an action against the Federal Government.”[161] Likewise, the State of Texas had not suffered an injury due to the placement preferences, and in the event that a tribe availed itself of Section 1915(c) of ICWA in order to alter the placement preferences, the tribe’s exercise of authority would similarly not pose an injury to the State of Texas.[162]

V. ANALYSIS

The plaintiffs’ challenges to ICWA in this case posed an existential threat to tribal sovereignty in the United States. Since the founding era, the United States government has attempted to eradicate Indigenous cultures while simultaneously avowing tribal sovereignty. Federal and state practices toward Native Americans have involved attempts at forced assimilation, and Native American children have been a primary target in achieving these ends. As Congress belatedly recognized in 1978, keeping Native American children with their families and tribes is the only way to ensure that these tribes and their cultural traditions will survive.[163]

As such, ICWA represents Congress’s attempt to redress the very serious harms that have been caused to Indigenous children, families, and tribes over the past two centuries, and by all measures, the Act has been a success. However, the problems that existed in 1978, when Congress enacted the statutory scheme, persist today, making it crucial that ICWA survived the plaintiffs’ constitutional challenges, and any future challenges that the Supreme Court may agree to hear. The Court’s decision in Haaland v. Brackeen benefits Native American children, families, and tribes, and in affirming Congress’s authority to enact ICWA and rejecting plaintiffs’ constitutional challenges, the Court’s decision was firmly grounded in precedent and in historical constructions of the relationship between the United States and Indigenous tribal nations.

Despite this victory, however, concerns remain that the majority opinion may have closed the door on some constitutional challenges to ICWA while also leaving an opening for future challenges. The majority focused more heavily on explaining precedent and remarking on the deficiencies in plaintiffs’ support for their claims than on engaging with plaintiffs’ arguments.[164] The majority reached the overall conclusion—that “[i]f there are arguments that ICWA exceeds Congress’s authority as our precedent stands today, [plaintiffs] do not make them”—without fully explaining the argument that plaintiffs did make.[165] In his dissent, Justice Thomas also took comfort in what he called the “one saving grace to today’s decision”: that while the majority “decline[d] to disturb the Fifth Circuit’s conclusion that ICWA” does not exceed Congress’s Article I powers, they did not actually decide that the statute’s provisions are consistent with these powers.[166]

Additionally, because the Court found that all plaintiffs lacked standing to bring the Equal Protection challenges, it did not rule on the merits of these claims. Supreme Court precedent has held that in most cases, federally recognized Indian tribes represent political, rather than racial, classifications;[167] however, because the Court did not resolve the Equal Protection claims on the merits, ICWA’s placement preferences could face Equal Protection challenges by parties who do have standing in the future. Ironically, Native American parents and children have historically been denied “equal protection” in child custody hearings,[168] so it is disturbing to think that a future Equal Protection claim could undo the limited protection that ICWA provides.

In his concurrence, Justice Kavanaugh expressed his view that “the equal protection issue is serious” and noted that the issue remained undecided.[169] He implicitly stated his opinion on the matter when he wrote, “Under the Act, 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 interest.”[170] It remains to be seen whether the Court would have followed precedent in holding that ICWA’s placement preferences—preferences that rely on classifications such as “Indian child,” “Indian,” “Indian child’s tribe,” among others—represent political classifications rather than racial ones. Future challenges to ICWA based on the Equal Protection Clause—claims that the Act places non-Indian parties “on ‘[un]equal footing’ with Indian parents who seek to adopt or foster an Indian child”—could undermine one of the most important aspects of the statute and hence impede Congress’s goal of ensuring that Indian children remain connected to their families and cultures whenever possible.

The underlying objectives of ICWA—to keep Native American children with family members and/or their extended communities—represent “the gold standard of child welfare for all children and families.”[171] Allowing Native American tribal courts to decide family-related proceedings for their members, or to intervene in state court proceedings involving Native American children, is the bedrock of sovereignty, and it is the same power that the states possess in regard to their citizens. If Native American tribes and their cultural traditions are to survive, the tribes need some agency in determining what happens to their children. This decision on ICWA helps to preserve the future of tribal sovereignty. Unfortunately, neither Congress nor the Court was starting with a clean historical slate; therefore, while ICWA is not a perfect solution, it offers the best hope for moving forward.

VI. CONCLUSION

Unspeakable atrocities have been committed against Indigenous peoples since Europeans first set foot on this continent. ICWA represents a congressional acknowledgement of the irreparable damages that have already been caused, and simultaneously an attempt to rectify historical wrongs that have been enacted in the name of child welfare. The Supreme Court’s decision in Haaland v. Brackeen marks a step in the right direction in terms of acknowledging this history, reaffirming tribal sovereignty, and helping to ensure the future survival of Native American tribes and their cultural traditions. When the Tribal Chief of the Mississippi Band of Choctaws testified before Congress in 1978, he said, “Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People.”[172] By concluding that ICWA does not exceed Congress’s power or invade state sovereignty, the Court helped to increase these chances of Indian survival. By upholding ICWA and hence reducing the number of Native American children whose tribal connections are severed, the Supreme Court not only promoted best practices in child welfare, but also rendered the federal acknowledgement of Native American sovereignty a little less illusory.

[1] Antonio Voce, Leyland Cecco & Chris Michael, ‘Cultural Genocide’: The Shameful History of Canada’s Residential Schools – Mapped, Guardian (Sept. 6, 2021, 5:00 AM), https://www.theguardian.com/world/ng-interactive/2021/sep/06/canada-residential-schools-indigenous-children-cultural-genocide-map.

[2] Id.

[3] See, e.g., id.

[4] William Faulkner, Requiem for a Nun 73 (1951).

[5] “While one might consider this erasure [of Indigenous people, communities, and cultures] a thing of the past—a phenomenon belonging more to colonization or the country’s period of Western expansion—many of the legal, social, and political structures in the United States still operate in ways that disparately affect Indigenous communities. One such structure is the child welfare system.” Julia Gaffney, Note, “The Gold Standard of Child Welfare” Under Attack: The Indian Child Welfare Act and Haaland v. Brackeen, 56 Fam. L.Q. 231, 231 (2022–23).

[6] Anderson Cooper, Canada's Unmarked Graves: How Residential Schools Carried out "Cultural Genocide" Against Indigenous Children, CBS News (Feb. 6, 2022, 6:57 PM), https://www.cbsnews.com/news/canada-residential-schools-unmarked-graves-indigenous-children-60-minutes-2022-02-06/.

[7] Gaffney, supra note 5, at 240 (citing Nat’l Indian Child Welfare Ass’n., Setting the Record Straight: The Indian Child Welfare Act Fact Sheet 1 (2015), https://www.nicwa.org/wp-content/uploads/2017/04/Setting-the-Record-Straight-ICWA-Fact-Sheet.pdf).

[8] Haaland v. Brackeen, 143 S. Ct. 1609, 1642 (2023) (Gorsuch, J., concurring).

[9] As the term “Indian” is part of both the Supreme Court’s jurisprudence and the Indian Child Welfare Act’s title, this Note similarly adopts the term. However, this Note also uses the more culturally acceptable terms “Native American” and “Indigenous.”

[10] Haaland, 143 S. Ct. at 1642 (Gorsuch, J., concurring).

[11] Id. at 1642–43.

[12] Id. at 1642 (Gorsuch, J., concurring) (quoting Richard H. Platt, The Advantages of Mingling Indians with Whites, in Proceedings of the National Conference of Charities and Correction 45, 46 (Isabel C. Barrow ed., 1892)).

[13] See, e.g., Haaland, 143 S. Ct. at 1623 (2023) (majority opinion) (State removals of Indian children “harmed not only Indian parents and children, but also Indian tribes.”); Gaffney, supra note 5, at 235 (“By targeting Indigenous children, . . . the U.S. government was halting ‘the transmission of tribal heritage’ and ensuring that Indigenous communities would wither away.” (footnote omitted)).

[14] Gaffney, supra note 5, at 233 (2022–23) (citing Indian Adoption Project, Upstander Project, https://upstanderproject.org/learn/guides-and-resources/first-light/indian-adoption-project (last visited Aug. 29, 2022)).

[15] Id. (alteration in the original) (citing Indian Adoption Project, supra note 14).

[16] “[W]hen Indigenous custom conflicted with the white American conceptualization of childrearing, the Indigenous parents and families were deemed unfit to raise their children.” Gaffney, supra note 5, at 233–34.

[17] Id.

[18] Haaland, 143 S. Ct. at 1645 (Gorsuch, J., concurring) (quoting Association on American Indian Affairs Report, at 3–4).

[19] Id. at 1644 (quoting Association on American Indian Affairs Report, at 1).

[20] Id. at 1645 (2023) (quoting Association on American Indian Affairs Report, at 2).

[21] 25 U.S.C. §§ 1901-1963.

[22] § 1901(4).

[23] § 1901(3).

[24] Haaland, 143 S. Ct. at 1646 (Gorsuch, J., concurring).

[25] The first case was Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), and the second was Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013).

[26] Haaland, 143 S. Ct. at 1622 (majority opinion).

[27] Id. at 1625.

[28] Id.

[29] Brackeen v. Zinke, 338 F. Supp. 3d 514, 525 (N.D. Tex. 2018), aff’d in part, rev’d in part, sub nom. Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019), and rev’d in part, aff’d in part en banc per curiam sub nom. Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021), rev’d in part, vacated in part, aff’d in part sub nom. Haaland v. Brackeen, 143 S. Ct. 1609 (2023).

[30] Id.

[31] Id.

[32] Id.

[33] Brackeen v. Haaland, 994 F.3d 249, 288 (5th Cir. 2021) (en banc) (per curiam), rev’d in part, vacated in part, aff’d in part, 143 S. Ct. 1609 (2023).

[34] Haaland, 143 S. Ct. at 1625.

[35] Id.

[36] Id.

[37] Id.; Brackeen, 994 F.3d at 288.

[38] Haaland, 143 S. Ct. at 1625–26.

[39] Id. at 1626. Texas was the only state plaintiff that remained by the time the case reached the Supreme Court. Id.

[40] Id. The federal defendants included the United States Department of the Interior and Secretary Haaland in her official capacity, the Bureau of Indian Affairs and Director Rice in his official capacity, and the Department of Health and Human Services and its Secretary. See Zinke, 338 F. Supp. 3d at 519.

[41] Brackeen, 994 F.3d at 289–90. These nations included the Cherokee Nation, the Oneida Nation, the Quinault Indian Nation, the Morongo Band of Mission Indians, and the Navajo Nation. Id.

[42] The BIA promulgated this regulation in 2016 in order to “clarify the minimum Federal standards governing implementation of the [ICWA].” Zinke, 338 F. Supp. 3d at 523. Because the Supreme Court did not hear plaintiffs’ challenge to the Final Rule, this Note only discusses the Final Rule in the context of procedural history.

[43] Id. at 541.

[44] Id. at 530–31.

[45] Id. at 536.

[46] Id. at 538.

[47] Id. at 541.

[48] Id. at 546.

[49] Id. at 520.

[50] Id. at 546.

[51] Brackeen v. Bernhardt, 937 F.3d 406, 416 (5th Cir. 2019). rev’d in part, aff’d in part en banc per curiam sub nom. Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021), rev’d in part, vacated in part, aff’d in part sub nom. Haaland v. Brackeen, 143 S. Ct. 1609 (2023).

[52] Brackeen, 994 F.3d at 267, 269.

[53] Haaland, 143 S. Ct. at 1627; Oral Argument - Audio, Sup. Ct. U.S., https://www.supremecourt.gov/oral_arguments/audio/2022/21-376 (last visited Oct. 27, 2023).

[54] Haaland, 143 S. Ct. at 1631.

[55] Id. at 1638.

[56] Id.

[57] Id. at 1647–48 (Gorsuch, J., concurring).

[58] Id. at 1627–28 (majority opinion).

[59] Id. at 1627.

[60] Id. at 1626–27.

[61] See, e.g., Worcester v. Georgia, 31 U.S. 515, 546 (1832) (“Fierce and warlike in their character, [Native Americans] might be formidable enemies, or effective friends.”).

[62] Id. at 547. Writing for the majority in Worcester v. Georgia, Chief Justice Marshall explained the principle of discovery that European nations acknowledged, a principle which “gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it.” Id. at 516. He went on to state that this principle applied to “those [nations] who had agreed to it,” but did not “annul the previous rights of those who had not agreed to it” i.e., Native Americans. Id. at 544.

[63] William W. Quinn, Jr., Federal Acknowledgement of American Indian Tribes: The Historical Development of a Legal Concept, 34 Am. J. Legal Hist. 331, 338 (1990).

[64] Robert N. Clinton, The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict over the Management of Indian Affairs, 69 B.U.L. Rev. 329, 357–58 (1989).

[65] See id. at 362–64.

[66] Worcester, 31 U.S. at 547. In further discussing British and European treaties with Native Americans, C.J. Marshall explained that these treaties “merely bound the nation to the British crown, as a dependent ally, claiming the protection of a powerful friend and neighbour, and receiving the advantages of that protection, without involving a surrender of their national character.” Id. at 552. This dynamic would also come to define the unique relationship between Native American tribes and the United States government. See, e.g., Quinn, supra note 63, at 337 (“The new Republic was legatee of a heritage that recognized, albeit sometimes grudgingly, the sovereignty of Indian tribes native to the continent.”).

[67] Worcester, 31 U.S. at 549.

[68] Id.

[69] Id. at 548–49.

[70] E.g., id. at 549; Quinn, supra note 63, at 339.

[71] See, e.g., Worcester, 31 U.S. at 547–49, 551–53. For example, Article IX of the Treaty of Hopewell, which the United States entered into with the Cherokees after they had supported the British in the Revolutionary War, reads, “for the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in [C]ongress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs, as they think proper.” Id. at 553.

[72] Haaland, 143 S. Ct. at 1627. The Court in Haaland cites to a number of cases dating back to 1899, all of which characterize Congress’s authority vis-à-vis Indian tribes as “plenary”; these cases include United States v. Lara, 541 U.S. 193, 200 (2004); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998); Washington v. Confederated Bands & Tribes of Yakima Nation, 439 U.S. 463, 470 (1979); Winton v. Amos, 255 U.S. 373, 391 (1921); Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903); and Stephens v. Cherokee Nation, 174 U.S. 445, 478 (1899). Haaland, 143 S. Ct. at 1627.

[73] E.g., Morton v. Mancari, 417 U.S. 535, 551–52 (1974); United States v. Holliday, 70 U.S. 407, 416–18 (1865); Lara, 541 U.S. at 200.

[74] E.g., Worcester, 31 U.S. at 561–62; Mancari, 417 U.S. at 552; Lara, 541 U.S. at 203.

[75] E.g., Cherokee Nation v. Georgia, 30 U.S. 1, 18 (1831); Worcester, 31 U.S. at 561–62; Mancari, 417 U.S. at 552; Lara, 541 U.S. at 203–04.

[76] U.S. Const. art. I, § 8, cl. 3.

[77] Lara, 541 U.S. at 201 (citing Missouri v. Holland, 252 U.S. 416, 433 (1920)).

[78] Id. (first citing Felix S. Cohen, Handbook of Federal Indian Law 209–10 (1982); and then citing Francis Paul Pucha, American Indian Policy in the Formative Years 44–49 (1962)).

[79] See, e.g., Cherokee Nation, 30 U.S. at 18; Worcester, 31 U.S. at 561–62; Mancari, 417 U.S. at 552; Lara, 541 U.S. at 203–04.

[80] Mancari, 417 U.S. at 541–42.

[81] E.g., Worcester, 31 U.S. at 560; Holliday, 70 U.S. at 419.

[82] “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X.

[83] E.g., Tafflin v. Levitt, 493 U.S. 455, 458 (1990); Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).

[84] Printz v. United States, 521 U.S. 898, 935 (1997). The anticommandeering doctrine is not explicitly stated in the Tenth Amendment, but rather, it is a result of jurisprudential construction. See id.; New York v. United States, 505 U.S. 144, 161 (1992). In a seminal case on the anticommandeering principle, New York v. United States, Justice O’Connor, writing for the majority, summarizes the anticommandeering principle: “In providing for a stronger central government, therefore, the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. As we have seen, the Court has consistently respected this choice. We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” New York, 505 U.S. at 166.

[85] Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1477 (2018) (quoting New York, 505 U.S. at 178).

[86] Haaland, 143 S. Ct. at 1633.

[87] §§ 1911–1934.

[88] § 1903(1).

[89] § 1903(4).

[90] The child’s tribe has exclusive jurisdiction when the child lives on the reservation with one narrow exception: “where such jurisdiction is otherwise vested in the State by existing Federal law.” Id. § 1911(a).

[91] Id.

[92] § 1911(b).

[93] Id. This subsection also provides that “such transfer shall be subject to declination by the tribal court of such tribe.” Id.

[94] See § 1912.

[95] § 1911(c).

[96] § 1911(d). “The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.” Id.

[97] §§ 1912–1913.

[98] § 1912(a).

[99] § 1912(b).

[100] § 1912(d).

[101] Id.

[102] § 1912(e).

[103] § 1912(f).

[104] § 1913.

[105] § 1913(b).

[106] § 1913(c).

[107] § 1913(d).

[108] § 1914.

[109] § 1915.

[110] § 1915(a).

[111] § 1915(b).

[112] § 1915(c).

[113] § 1951(a).

[114] Haaland, 143 S. Ct. at 1630.

[115] Id. at 1634–35.

[116] Id. at 1638.

[117] Id. at 1621.

[118] § 1902.

[119] Haaland, 143 S. Ct. at 1627, 1629 (“It is plenary within its sphere, but even a sizeable sphere has borders.”).

[120] Id. at 1627–28.

[121] Id. at 1628 (quoting United States v. Jicarilla Apache Nation, 564 U.S. 162, 176 (2011)).

[122] Id. at 1629.

[123] Id. at 1630.

[124] Id. (first citing Ridgway v. Ridgway, 454 U.S. 46, 54 (1981); and then citing Hillman v. Maretta, 569 U.S. 483, 291 (2013)).

[125] Id. (“In fact, we have specifically recognized Congress’s power to displace the jurisdiction of state courts in adoption proceedings involving Indian children.” (citing Fisher v. Dist. Ct. of 16th Jud. Dist. of Mont., 424 U.S. 382, 390 (1976) (per curiam))).

[126] Id.

[127] Id. (first citing Brief for Individual Petitioners at 16, Haaland v. Brackeen, 142 S. Ct. 1609 (2023) (Nos. 21-376, 21-377, 21-378, 21-380); then citing Brief for Petitioner Texas at 23, Haaland v. Brackeen, 142 S. Ct. 1609 (2023) (Nos. 21-376, 21-377, 21-378, 21-380) (“[C]hildren are not commodities” (alteration in original)); and then citing United States v. Nice, 241 U.S. 591, 600 (1916) (“Children are not articles of commerce”)).

[128] Id.

[129] Id. at 1656 (Gorsuch, J., concurring).

[130] Id. at 1631 (majority opinion) (quoting Brief for Petitioner Texas at 28, Haaland v. Brackeen, 143 S. Ct. 1609 (2023) (Nos. 21-376, 21-377, 21-378, 21-380)).

[131] Id.

[132] Id.

[133] Id.

[134] Id.

[135] Id. at 1634.

[136] Id. at 1635.

[137] Id. at 1631–32.

[138] § 1912(a).

[139] § 1912(d).

[140] Haaland, 143 S. Ct. at 1631–32.

[141] Id. at 1632.

[142] Id.

[143] Id. (citing Murphy, 138 S. Ct. at 1478–79).

[144] Id. at 1634.

[145] Id. at 1635 (first quoting Brief for Petitioner Texas at 63, Haaland v. Brackeen, 143 S. Ct. 1609 (2023) (Nos. 21-376, 21-377, 21-378, 21-380; then quoting Reply Brief for Texas at 24, Haaland v. Brackeen, 143 S. Ct. 1609 (2023) (Nos. 21-376, 21-377, 21-378, 21-380); and then citing Brief for Individual Petitioners at 67–68, Haaland v. Brackeen, 143 S. Ct. 1609 (2023) (Nos. 21-376, 21-377, 21-378, 21-380)).

[146] Id.

[147] Id.

[148] Id.

[149] Id.

[150] Id. (quoting New York, 505 U.S. at 178–79).

[151] Id. at 1636.

[152] Id.

[153] Id. at 1638.

[154] Id.

[155] Id.

[156] Id. 1638–39.

[157] Id. at 1639.

[158] Id.

[159] Id.

[160] Id. at 1638.

[161] Id. at 1640 (first citing South Carolina v. Katzenbach, 383 U.S. 301, 323 (1966); and then quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982)).

[162] Id. at 1640–41.

[163] See §§ 1901–1963.

[164] See, e.g., Haaland, 143 S. Ct. at 1630 (dismissing plaintiffs’ claim that Congress does not possess authority to legislate with regard to family law as “a nonstarter”); Haaland v. Brackeen, 143 S. Ct. 1609, 1639 (2023) (using precedent to call plaintiff’s Commerce Clause argument “dead end” with only one sentence of reasoning (first citing Holliday, 70 U.S. at 417; and then citing United States v. Nice, 241 U.S. 591, 600 (1916)).

[165] Id. at 1631.

[166] Id. at 1683 (Thomas, J., dissenting).

[167] E.g., Mancari, 417 U.S. at 554.

[168] E.g., Margaret D. Jacobs, Remembering the “Forgotten Child”: The American Indian Child Welfare Crisis of the 1960s and 1970s, 37 Am. Indian Q. 136, 151 (2013) (“[T]he IAP [Indian Adoption Project], state welfare agencies, and the courts actually subjected Indian people to brutally different standards regarding child welfare. . . . [T]he IAP and state welfare agencies routinely failed to abide by standard legal procedures when it came to Indian families.”).

[169] Haaland, 143 S. Ct. at 1661 (Kavanaugh, J., concurring).

[170] Id.

[171] Brief for Casey Family Programs et al. as Amici Curiae Supporting Petitioners, Haaland v. Brackeen, 143 S. Ct. 1609 (2023) (Nos. 21-376, 21-377) (quoting Casey Fam. Programs, Child and Family Services Practice Model 6 (2019), https://www.casey.org/media/101-Practice-Model.pdf) (“Decades of experience and research establish that children are best served by preserving as many connections with their birth family and community as can be done safely. . . . Far from derogating from the best interests of children, ICWA applies these universal principles in service of those best interests. Because ICWA standards are grounded in best practices for all children, upholding ICWA protects the ability of child welfare agencies and courts to serve the best interests of children.”).

[172] Haaland, 143 S. Ct. at 1623 (quoting Hearing on S. 1314 Before the Subcomm. on Indian Affs. and Pub. Lands of the H. Comm. on Interior and Insular Affs., 95th Cong., 2d Sess., 193 (1978) (statement of the Tribal Chief of the Miss. Band of Choctaw Indians)).

Loyola Law Review