Three-Minute Legal Talks: Brackeen v. Haaland

Before the passage of the Indian Child Welfare Act in 1978, Indian families faced the possibility of children being unnecessarily removed from their homes, and often their communities altogether. To address this, ICWA set up a series of legal standards to protect Indian children from this troubling practice.

On November 9, lawyers for both sides of Brackeen v. Haaland presented oral arguments before the Supreme Court with three main issues at stake: 1) whether ICWA unconstitutionally discriminates based on race; 2) if ICWA commandeers or exceeds Congress’s authority; and 3) if ICWA violates the non-delegation doctrine.

With the decision still months away, legal scholars are already predicting that the outcome of this case could have lasting effects on Indian nations, with the potential to disrupt the foundations of native sovereignty.

Follow along as Stacey Lara, UW Law Assistant Teaching Professor and Co-director of the Tribal Court Public Defense Clinic, covers the case — and its potential impact — in three minutes.

Read the Transcript

Stacey Lara: My name is Stacey Lara and I'm an assistant teaching professor at the University of Washington School of Law.

Three-Minute Legal Talks: Can you give a brief overview of the Indian Child Welfare Act?

SL: The Indian Child Welfare Act was passed in 1978 in response to the really egregious and tragic practice of unnecessary removal of Indian children from their families and their communities. The Indian Child Welfare Act was put in place to address this reality and in its passage create certain protections for Indian children to remain in their homes. These include notice, so tribes getting notice when one of their children have been removed from their family's home. It sets higher standards for service provisions. So, child welfare agencies or someone looking to a third party looking to adopt a child needs to make active efforts to keep the family intact before removal and to try and return that child home as soon as possible. It also creates higher standards of proof and creates a remedy in that it allows for the invalidation of a termination of parental rights if the law is not complied with.

TMLT: What are the issues concerning Brackeen v. Haaland.

SL: So, this case presents three primary issues to the Supreme Court. The first is whether ICWA unconstitutionally discriminates on the basis of race by requiring state proceedings to give preference in its placement of Indian children with that child's extended family, other members of the tribe or Indian families rather than non-Indian adoptive parents. The second is whether ICWA in its implementing regulations constitutionally commandeers states or otherwise exceed Congress's authority. And then the third is whether the authority that ICWA confers upon individual Indian tribes violates the non-delegation doctrine.

TMLT: What are the arguments for both sides of the case?

SL: Well under the equal protection argument it involves placement preferences that are a component of ICWA. The Brackeen argument is that because ICWA applies to Indian children, it's a race-based classification. Many states are taking the position that ICWA is not about race. It doesn't apply because it's not based on racial identification. Tribal membership or enrollment is determined by the tribes themselves and it is a political designation, and that was established under Morton v. Mancari. On anticommandeering, that doctrine, the Brackeen argument is that ICWA requires state agencies to spend money and resources and in doing that it commandeers state governments, which would be a violation of anticommandeering. The response is that ICWA sets minimum legal burdens and that if Congress has the power to pass a law, it also has the power to require state judges to comply with and enforce it. And then with respect to the non-delegation doctrine, the Brackeen position is that Congress improperly delegates placement preferences to tribes, this response being that tribes are not administrative agencies. They're not private persons. They're separate sovereigns that have a sovereign-to-sovereign relationship with the United States government, and therefore that the delegation doctrine doesn't apply.

TMLT: Can you explain what the decision might mean for federal Indian law and tribal sovereignty?

SL: One commentator has said that this case could have revolutionary and catastrophic consequences. And I absolutely agree with that. There are hundreds of treaties that the federal government has made with Indian nations that are in effect. And whether or not these can stand based on whether or not this law is considered unconstitutional, really remains to be seen. If Congress can't distinguish between tribal members and nonmembers, that has the real potential to impact future litigation involving native tribes. It could impact gaming revenue, gaming rights, mineral rights, tribal recognition, really undermining native sovereignty, which has been in place since the very first days of this country.