Haaland v. Brackeen, 599 U.S. 255 (2023)
Held:
Affirmed in Part; Vacated in Part; and Remanded
There is a dissent
by Thomas, J.; and a dissent by Alito, J.
*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.
- Facts: The petitioners include both individuals and the states of Texas, Indiana, and Louisiana. The case arises from three child custody proceedings where an Indian child was involved; the child was placed in a non-Indian placement; and the child’s tribe sought to enforce the placement preferences designated in ICWA. One of the petitioners was a couple who provided foster care to an Indian child and who wanted to adopt the child with the support of the child’s parents and grandmother. The child’s tribe opposed the adoption by the petitioners and sought to enforce the placement preferences for the child with a nonrelative tribal member. A second petitioner was the Indian child’s biological mother and prospective non-Indian adoptive parents who were selected by the biological mother. Although both biological parents supported the adoption, the tribe intervened and sought to enforce the placement preferences of ICWA. The third petitioner fostered an Indian child and sought to adopt the child. The tribe intervened and because of the placement preferences of ICWA, the child was moved from the non-Indian placement and placed with their grandmother. During the pendency of this appeal, the first two petitioners were able to adopt the children. All the individual petitioners expressed an interest in fostering or adopting Indian children in the future. Several Indian tribes intervened.
- The constitutional challenges included (1) Congress lacked authority to enact ICWA, (2) numerous ICWA requirements violated the Tenth Amendment anticommandeering principle, (3) race classifications for placement preferences discriminated against non-Indian families who wanted to foster or adopt Indian children, and (4) placement preferences that can be altered by the tribes violated the nondelegation doctrine.
- Procedural History: A federal district court granted summary judgment for the petitioners. In an en banc decision, the Fifth Circuit affirmed in part and reversed in part. The Firth Circuit held ICWA does not exceed Congress’s Power, the tribe’s placement preferences do not violate the nondelegation doctrine, and some of the placement preferences satisfy equal protection guarantees. The Fifth Circuit evenly split on whether other placement preferences unconstitutionally discriminated on race and issues related to notice requirements, placement preferences, and some recordkeeping requirements, thus affirming the district court’s ruling that these provisions were unconstitutional. The Fifth Circuit held the active efforts requirements, expert witness requirements, and the recordkeeping requirements violated the Tenth Amendment anticommandeering principle. The U.S. Supreme Court granted cert. Louisiana and Indiana did not pursue the appeal before the U.S. Supreme Court.
- ICWA was enacted to address “an alarmingly high percentage of Indian families that are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies… [which] harmed not only Indian parents and children, but also Indian tribes.” Sl.Op. 2. Because children are vital to the existence and integrity of Indian tribes, ICWA “aims to keep Indian children connected to Indian families.” Sl.Op. 3.
- Congress has the power to enact ICWA. Precedent has established that Congress has “plenary and exclusive” power to legislate with respect to the Indian tribes. Sl.Op.10. This power is not “free-floating” or absolute but derives from the Constitution. Id. This power comes from (1) the Indian Commerce Clause (Art. I, sec. 8, cl. 3); (2) the Treaty Clause (Art. II, sec. 2, cl. 2), which authorizes the President to make treaties with the Advice and Consent of the Senate, and although treaties with Indian tribes ended in 1871, Congress may “ ‘legislate on problems of Indians’ pursuant to pre-existing treaties” (Sl. Op. 11); (3) principles inherent in the structure of the Constitution to act on Indian affairs, described as “necessary concomitants of nationality” (Id.); and (4) “the trust relationship between the United States and the Indian people” (Sl.Op. 12). Congress has the power to legislate a wide range of areas with respect to Indians, which includes criminal law, domestic violence, employment, property tax, and trade.
- 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.
- Despite petitioners’ argument that the Indian Commerce Clause only applies to Indian tribes, precedent has established that “commerce with Indian tribes, means commerce with the individuals composing the tribes.” Sl.Op. 15 (citation omitted). Arguing children are not commerce is a rhetorically powerful point but ignores precedent that the Indian Commerce Clause addresses trade as well as “Indian affairs.” Sl.Op. 16.
- Principles inherent in the structure of the Constitution are not limited to war and peace as precedent includes “examples like ‘creating departments of Indian affairs, appointing Indian commissioners, and … ‘securing and preserving the friendship of the Indian nations’ ‘ – none of which are military actions.” Id. (citation omitted).
- ICWA was not enacted under the Treaty Clause power.
- 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.
- Similarly, the provisions of ICWA that address notice requirements to the tribes, expert witness requirements, and evidentiary standards apply to both private and state actors and do not pose an anticommandeering problem.
- The placement preferences under 25 U.S.C. 1915, which are hierarchical, do not violate the anticommandeering principle of the Tenth Amendment because the preferences apply to private and public parties. Additionally, ICWA “does not require anyone, much less the States, to search for alternative placements” so the state is not commanded to do anything. Sl.Op. 23. State courts must apply the placement preferences, but under the Supremacy Clause of federal law over state law, Congress can require state courts to enforce federal law. As held in Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013), no preference applies if an alternative party who meets the preferred preference has not come forward. The tribe or party objecting to the placement has the burden of producing the preferred (higher-ranked) placement.
- Two recordkeeping requirements do not violate the anticommandeering principle of the Tenth Amendment – “Congress may impose ancillary recordkeeping requirements related to state-court proceedings without violating the Tenth Amendment.” Sl.Op. 28. ICWA requires the state court to provide the Bureau of Indian Affairs with a copy of the final adoption order and other information to show the child’s tribal affiliation and name, the names and addresses of the biological parents and adoptive parents, and the identity of any agency that has information about the adoptive placement. 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. 25 U.S.C. 1951(a). ICWA also requires the state to maintain a record that documents the efforts that were made to comply with the placement preferences and to make the record available at any time to the Bureau of Indian Affairs or the tribe. 25 U.S.C. 1915(e).
- The individual petitioners and the State of Texas do not have standing to raise an equal protection challenge to the placement preferences or a nondelegation challenge to the tribe’s ability to modify the placement preferences.
- 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.
- The concurrence also discusses the competing claims of federal, state, and tribal authority. Tribes are independent sovereigns with exclusive power to manage their internal affairs. “[R]esponsibility for managing interactions with the Tribes rests exclusively with the federal government” and is not with the States. Concurrence 18. The Indian Commerce Clause gives Congress the “ ‘authority to regulate commerce with Native Americans’ as individuals … [and] cover[s] ‘something more’ than just economic exchange.” Concurrence 28, 29. But, there is no “ ‘authority to delegate to the national government power to regulate the [T]ribes directly’” Concurrence at 31. The plenary power theory adopted by the courts has resulted in confusion in Indian-law jurisprudence and recently, the Court has started to correct its mistake of expanding the meaning of plenary from what was first employed. This opinion recognizes Congress’s authority results from the Constitution and looks to the Indian Commerce Clause and acknowledges there are limits to what Congress can legislate with respect to Indian tribes. ICWA falls under Congress’s constitutional authority and limits how non-Indians may interact with Indians. Through ICWA “Congress exercised its authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is keeping with the Constitution’s original design.” Concurrence 28.
- Concurrence: Kavanaugh, J.: Concur in full. Emphasizing the court did not address or decide the race-based equal protection issue because of the lack of standing so this serious issue is undecided.
- Dissent, Thomas, J.: Congress did not have authority to enact ICWA. The federal government’s powers are limited by the Constitution, and all other powers, including family law, remain with the States. The Constitution does not give the federal government plenary power over Indian affairs. The Court refers to a plenary power Congress has over Indian tribes but it is not grounded in constitutional text and the majority continues to refer to this power without a constitutional basis. ICWA is unconstitutional and an intrusion on states’ powers. The Indian Commerce Clause applies to commerce, which is economic activity, and does not involve children or child custody matters. ICWA is not based on a treaty; the Treaty Clause is inapplicable. The inherent foreign affairs power does not apply to domestic child custody proceedings of U.S. citizens who reside in the States. Instead, it applies to external affairs and relations, such as war, peace, and diplomacy. ICWA “regulates child custody proceedings, brought in state courts, for those who need never have set foot on Indian lands. It is not about tribal lands or tribal governments, commerce, treaties, or federal property.” Dissent 39.
- Dissent, Alito, J.: Provisions of ICWA are contrary to the best interests of children and require courts to consider what Congress believes is in the tribe’s best interests. Congress’s authority over Indian affairs does not allow it to (1) promote the tribe’s interests over a child’s best interests and (2) force state judges to follow the tribe’s priorities for placement. Governing family relations is reserved for the states and not the federal government, although this does not mean Congress can never address a family law matter. “ICWA violates the fundamental structure of our constitutional order.” Dissent 4. ICWA requires a state to abandon its own judicial procedures and laws when addressing a child’s welfare and apply a federal law that focuses on the tribes and not solely on the child’s best interests. This overrides the state’s authority and harms vulnerable children and their parents.
Category:
Termination of Parental RightsStage:
ICWATopic: