Haaland v. Brackeen, 599 U.S. 255 (2023)

*You can also read U.S. Supreme Court Holds the Indian Child Welfare Act Is Constitutional post on the School’s On the Civil Side Blog.

 Held: Affirmed in part, reversed in part, vacated and remanded in part (7-2 decision). All of petitioners’ challenges are rejected.

(1)    Congress has the power to enact ICWA

(2)    ICWA does not violate the anticommandeering principle of the Tenth Amendment

(3)    No party has standing to raise the equal protection claim and the nondelegation challenge regarding the placement preferences.

• State courts apply state law when hearing cases involving foster care and adoptions, but when the child is an Indian child, ICWA, a federal statute, applies. Although Congress generally lacks power over domestic relations, “the Constitution does not erect a firewall around family law.” Sl.Op. 14. There is no family law carve out to Congress’s power to enact legislation under Article I.

• Petitioners ignore precedent and argue “as if the slate were clean[,but m]ore than two centuries in, it is anything but.” Sl.Op. 17.
• ICWA does not violate the anticommandeering principle of the Tenth Amendment.
  • In an involuntary child custody proceeding [in NC, abuse, neglect, dependency or TPR], ICWA provides heightened protections to parents and tribes. Any party who seeks a foster care placement or TPR must “satisfy the court 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 been unsuccessful.” Sl.Op. 18-19 (quoting 25 U.S.C. 1912(d)). The active efforts requirement does not command the state’s legislative or executive authority to administer or enforce a federal regulatory program. The statutory requirement is not directed primarily or exclusively to the states but applies to “any party” initiating an involuntary proceeding, which includes private individuals and agencies along with government entities. “Legislation that applies ‘evenhandedly’ to state and private actors does not typically implicate the Tenth Amendment.” Sl.Op. 20 (citation omitted). There is no evidence that states initiate the vast majority of involuntary proceedings. Texas law authorizes private parties to initiate a termination of parental rights. Although the state initiates child protection cases, active efforts applies to cases that do not involve abuse or neglect; for example, it applies to a private adoption where one parent does not consent. Further, the state is not the only entity that can protect a child; for example, a grandmother can seek guardianship of her grandchild when the parents are neglectful. The application of active efforts to private lawsuits is consistent with ICWA’s findings about the role of public and private actors in unjustly separating Indian children from their families and tribes.

• Petitioners must show they suffered an injury that will be redressed by the requested relief. The placement preferences are applied by state courts, and state agencies carry out the court-order placements. There are no state officials who implement ICWA that are parties to this lawsuit, so any order would not be binding on the state actors. The judgment remedies an injury and addressing this issue would not result in a remedy but instead would be nothing more than an opinion.
• Texas has no equal protection rights and cannot bring an action against the federal government as parens patriae on behalf of its citizens. Texas has not been injured.
• Concurrence: Gorsuch, J. joined by Sotomayor, J. and Jackson, J. for Parts I and III
  • This concurrence provides historical context for ICWA and discusses the history of the removal of Indian children from their families and tribes and the existential threat to the tribes for almost 150 years. It discusses Indian boarding schools, which started in 1879 with one school in Pennsylvania and grew to 408 schools across the country, which had the goal of “the abolition of the old tribal relations.” Concurrence 4. Children came to the schools through either abduction or coercing parents by withholding rations. Once at the schools, the children were stripped of their identity – they were given English names, had their hair cut and their traditional clothes confiscated, were prohibited from speaking their native language or engaging in their customary or religious practices, and were separated from other members of their own Tribe. Children who resisted or ran away were punished. Conditions generally involved sexual, physical, and emotional abuse; disease; malnourishment; overcrowding; and a lack of health care. The Tribes were charged with the cost of the schools, and the children were required to work on the grounds to subsidize the costs. Some children were “outed” to live with white families to work on household and farm chores. Boarding schools continued into the 1970s, although a transition away from boarding schools had been occurring. At the same time, there was an increased demand for Indian children by adoptive couples. In the 1960s and 1970s, approximately one quarter to one third of all Indian children were removed from their families and communities without justification and without due process. An estimated 90 percent or more of non-relative adoptions were by non-Indian couples. Compared to white children, Indian children experienced a higher rate of physical, sexual, and emotional abuse in their foster and adoptive homes. The result was long-lasting health and emotional damage. In 1978, Congress responded to this crisis by enacting ICWA. “[T]he law’s operation is simple. It installs substantive and procedural guardrails against the unjustified termination of parental rights and removal of Indian children from tribal life.” Concurrence 10. Still, “ ‘ many [S]tates have struggled with ‘effective implemenation’…. Others resist ICWA outright, as the present litigation by Texas attests.” Concurrence 12.