On Wednesday, November 9, 2022, the U.S. Supreme Court held a three-hour oral argument in the Brackeen v. Haaland case. Brackeen involves constitutional challenges to the federal Indian Child Welfare Act of 1978 (ICWA) that could have far-reaching consequences on many areas of federal Native peoples’ law, from Tribal sovereignty to the Small Business Administration’s 8(a) program.

ICWA. Congress passed ICWA to stem the alarmingly high percentage of Native American families that were broken up through child custody and adoption proceedings in state courts. Generally, ICWA grants exclusive tribal jurisdiction over child-custody proceedings involving Native children who reside or are domiciled on the tribe’s reservation or who are wards of the tribal court. For other child-custody proceedings involving Native children, tribal courts and state courts have concurrent jurisdiction. When such proceedings occur in state court, ICWA requires two main things. First, ICWA establishes minimal standards before a Native child can be removed from their family. Second, for adoptions and foster placement of Native children, ICWA requires the state court give a placement preference, in the absence of good cause to the contrary, to a member of the child’s extended family, other members of the Native child tribe, or other Native families.

BACKGROUND. Brackeen involves three states (Texas, Louisiana, and Indiana) and seven individual plaintiffs (three non-Native couples––the Brackeens, Librettis, and Cliffords—seeking to adopt Native American children and one biological non-Native parent who desired for her baby to be adopted by a non-Native couple). The Brackeens live in Texas and successfully adopted Native child “ALM,” after long proceedings in Texas state court. The Brackeens are currently seeking to adopt ALM’s sister, but the Navajo Nation contests the adoption. The Librettis live in Nevada and sought to adopt “Baby O,” whose biological father descends from members of the Ysleta del Sur Pueblo Tribe and was a registered member at the time Baby O was born. The Pueblo Tribe contested the Librettis’ adoption of Baby O, until the Librettis filed suit and the tribe settled and agreed to a non-contest the adoption. The Librettis testified that they intend to provide foster care for and possibly adopt additional children in need but are reluctant to foster Native  children after their experience. The Cliffords live in Minnesota and seek to adopt “Child P,” whose maternal grandmother is a registered member of the White Earth Band of Ojibwe Tribe. After Child P had lived with the Cliffords, Minnesota removed Child P from the household and placed her in the care of her maternal grandmother, pursuant to ICWA’s placement preference. Child P’s guardian ad litem supported the Cliffords’ efforts to adopt her.

The U.S. District Court for the Northern District of Texas struck down, among other things, ICWA’s placement preference as violating the Equal Protection Clause of the U.S. Constitution, ICWA’s provision requiring states to apply federal standards to adoption proceedings as violating the Tenth Amendment of the Constitution’s anti-commandeering principle, and Bureau of Indian Affairs regulations as violating the Administrative Procedure Act. On appeal, the full Fifth Circuit (all 16 active judges) participated. The Fifth Circuit reversed most of the District Court’s opinion. It held that Congress had the authority to enact ICWA under Article I of the Constitution, and that ICWA’s “Indian child” classification does not violate equal protection. However, the Fifth Circuit split evenly, 8-8, on the question of whether ICWA’s placement preference for “other Indian families” violated equal protection, so that district court ruling stood. As to the anti-commandeering rulings, the Fifth Circuit held that ICWA’s expert witness and recordkeeping requirements violated the Tenth Amendment. The Fifth Circuit split evenly, 8-8, on the question of whether ICWA’s placement preferences violated the Tenth Amendment by commandeering state conduct, thereby leaving the district court’s decision in place. The Fifth Circuit upheld other various portions of ICWA. The U.S. Supreme Court granted review of the case, and heard three hours of argument on November 9.

FAR-REACHING IMPLICATIONS. If the Court strikes down ICWA’s placement preference, it would be a sea change in state court custody and adoption proceedings involving Native American children. But, beyond that, Brackeen could have significant impacts on all areas of law touching on Native people. The Brackeens urge the U.S. Supreme Court to rule that ICWA’s placement preferences are impermissibly based on ancestry or race and should be struck down as violating the Equal Protection Clause’s general prohibition against the government making raced-based decisions. The U.S. government and Native tribes argue that the placement preference is permissibly based on a political, rather than racial, classification. As domestic dependent sovereigns, tribes enjoy a government-to-government relationship with the U.S., states, and other tribes; the federal government and tribes ask the Court to uphold ICWA as Congress’s valid exercise of its “plenary” power of Native Peoples’ affairs. If the Court adopts the Brackeens’ position that ICWA makes a race-based distinction, rather than a political distinction, that ruling could impact the viability of the SBA’s 8(a) program, the BIA’s hiring preference for Native Peoples, a host of federal legislation that provides benefits to Native American tribes (like the Indian Self-Determination and Education Assistance Act), and tribal sovereignty. Any law that grants Native peoples, Alaska Natives, or Native Hawaiians a preference would be on shaky ground if the Brackeens prevail at the U.S. Supreme Court. The Court is expected to issue its decision in June 2023, at the end of the Court’s current term.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.