On June 15, 2023, the U.S. Supreme Court decided Haaland v. Brackeen, No. 21-376, holding that the Indian Child Welfare Act does not violate either Article I of the Constitution or the Tenth Amendment’s anti-commandeering doctrine, and that the plaintiffs lacked Article III standing to challenge the Act on Equal Protection or non-delegation grounds in federal court.
In 1978, Congress passed the Indian Child Welfare Act (ICWA). The law was a response to the long and tragic history of state and local governments separating Native American children from their families. To counteract this history, the ICWA establishes minimum standards to prevent Native American children from being needlessly removed from their families and also establishes a preference that Native American children who are removed from their families be placed with extended family members or in Native foster homes.
In 2018, Texas and seven non-Native individuals who have tried to foster or adopt Native children sued the federal government, alleging that the ICWA was unconstitutional on four separate grounds. First, plaintiffs argued that the ICWA violates Article I of the U.S. Constitution because it exceeds Congress’s authority to “regulate commerce” “with the Indian Tribes.” Second, plaintiffs submitted that the ICWA violates the Tenth Amendment’s “anti-commandeering doctrine” because it allegedly requires states to adopt federal preferences for adoption placements. Third, plaintiffs contended that the ICWA violates the Equal Protection Clause of the 14th Amendment because it discriminates on the basis of “race” and “ethnicity.” Finally, plaintiffs concluded that a provision of the ICWA that requires state courts to follow tribal preferences for adoption of children violates the Constitution’s “non-delegation doctrine.” Sitting en banc, the Fifth Circuit rejected plaintiffs’ Article I and non-delegation arguments but accepted certain of plaintiffs’ Equal Protection and Tenth Amendment arguments. As a result, the Fifth Circuit ruled that substantial portions of the ICWA were unconstitutional.
The Supreme Court reversed the Fifth Circuit and ruled the Act constitutional, partly on merits grounds and partly on Article III standing grounds. With respect to plaintiffs’ Article I and Tenth Amendment claims, the Court rejected those on the merits. It held that the ICWA did not exceed Congress’s authority to “regulate commerce” “with the Indian Tribes” because the Court’s precedent established that Congress could legislate as to “Indian affairs,” not just “trade,” and the ICWA fell within that broad authority. On the Tenth Amendment, the Court reasoned that the ICWA’s procedural requirements do not “harness a State’s legislature or executive authority” as the Constitution forbids. Rather, the ICWA is merely a set of regulations that governs participants in a state legal proceeding. The Constitution’s Supremacy Clause and the Court’s precedents permit Congress to engage in such “preemptive” rulemaking.
As for plaintiffs’ Equal Protection and non-delegation challenges, the Court rejected both arguments on Article III standing grounds, without addressing the merits of either point. The Court held that the plaintiffs could not challenge the ICWA’s Native American placement preferences because state government officials enforce those rules, but the plaintiffs sued only the federal government. Thus, their injury was not “redressable” by the party sued. Nor could Texas sue on the plaintiffs’ behalf: “A State does not have standing as parens patriae to bring an action against the Federal Government.” If plaintiffs wished to pursue these claims further, the Court noted, plaintiffs could do so in state-court child-custody proceedings.
Justice Barrett delivered the opinion of the Court, in which Chief Justice Roberts and Justices Sotomayor, Kagan, Gorsuch, Kavanaugh, and Jackson joined. Justice Gorsuch filed a concurring opinion, in which Justices Sotomayor and Jackson joined in part. Justice Kavanaugh filed a concurring opinion. Justices Thomas and Alito filed dissenting opinions.
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