Three-Minute Legal Talks: The Supreme Court’s Ruling on Brackeen v. Haaland

Congress enacted the Indian Child Welfare Act in 1978 to prevent the state-enforced removal of Native American children from their communities. At the time, studies showed that 25–35% of Native children were taken from their communities and placed with non-Native foster families.

In Brackeen v. Haaland, the Supreme Court heard arguments to ICWA’s constitutionality on three issues: whether Congress had authority to enact ICWA, whether it violated the Tenth Amendment’s commandeering principles and whether it violated equal protection.

Follow along as Stacey Lara, UW Law Assistant Teaching Professor and Co-director of the Tribal Court Public Defense Clinic, covers the Supreme Court ruling and how it will affect Indian Country.

Read the Transcript

Stacey Lara: Hi, my name is Stacey Laura. I'm an assistant teaching professor at the University of Washington School of Law. I teach in the Tribal Court Public Defense Clinic and the Native American Law Center.

Three-Minute Legal Talks: Can you give a brief overview of the Brackeen v. Haaland Supreme Court case?

SL: In 1978, Congress enacted the Indian Child Welfare Act, or as we commonly refer to it as, ICWA, to remedy the historical and persistent state-sponsored destruction of Native American families and communities. At the time, there was data that showed that a full 25 to 35% of Native children were being removed from their homes and placed into foster care or adoptive care institutions.

Brackeen v. Haaland is a case that was brought to the Supreme Court out of the Fifth Circuit, challenging the constitutionality of ICWA. Three primary arguments were made in support of the challenge to its constitutionality. They were: Whether or not Congress had the authority to enact ICWA; Whether it violated the Tenth Amendment’s anti-commandeering principles, which bar the federal government from requiring states to adopt or enforce federal law; And, whether or not it unconstitutionally violates equal protection.

TMLT: How did the court rule?

SL: In a 7-2 opinion, the court ruled that Congress has broad but not unlimited power to enact laws with respect to Native Americans. So, even though family law has often been, traditionally, within the domain of states, Congress can supersede that law, just like it did in passing ICWA.

On the anti-commandeering argument, the Court found that provisions of ICWA, like active efforts and notice to tribes, did not impermissibly require state officers to administer or enforce federal programs. So, because the requirements applied to private individuals and agencies, as well as government entities, it did not violate the Tenth Amendment.

Finally, the Court found that the petitioners’ claims of equal protection and non-delegation lacks standing under Article Three. So, these claims can be brought in future cases. The court found that they were not properly before the court.

TMLT:  What do you see as some of the key takeaways from the majority opinion?
SL:  The majority opinion is a clear confirmation that Congress has the authority to enact laws addressing a wide swath of issues related to tribes and to tribal members. I found particularly, sort of, interesting and gratifying to read Justice Gorsuch’s opinion, which really went into a great deal of history that led to the enactment of ICWA. It included a very detailed recounting of the federal government's efforts to destroy tribal identity and to force assimilation on indigenous individuals. His opinion went on to really praise the decision, the majority opinion, of steps that he called in the right direction. You know, in his concurring opinion, Justice Kavanaugh emphasized that he has continuing equal protection concerns, but he did state that those issues weren't properly before the Court. So, I do think that there may be litigation down the line on those issues, whether it comes in an ICWA environmental or on a challenge to another law enacted by Congress that addresses tribes and potentially tribal sovereignty. But those are issues for another day. That's not where the Court came down today.

TMLT: How will this ruling affect Indian country?

SL: It's a pretty decisive rejection of the challenges to the Indian Child Welfare Act. You know, a statement by a number of tribes called it a major victory for native tribes, their children and the future of their cultures and heritage. It's certainly an affirmation of the basic constitutional principles regarding the relationship between Congress and sovereign tribal nations. Parties interested in challenging those federal laws based on an argument that it was congressional overreach that enacted those laws will have a much harder go of it.