Haaland v. Brackeen Explored: The Constitutional Defensibility of ICWA

The United States’ troubled history with Native people is an extensive one. Notorious for forcibly and unjustifiably removing Native children from their homes and families, the U.S. government’s conscious effort to strip Native peoples of their community ties was reinforced by legislation set to undercut Indigenous rights. As one historical data point, the Civilization Fund Act, codified into law by President James Monroe in 1819, established church-run “Indian boarding schools” with the aim of forcibly assimilating Native children. [1] For over a century, Native children were forcibly removed from their homes, rehoused with white families, and placed into these “schools”, effectively stripping them of their identities, languages, and beliefs.  

This continued well into the late 20th century with the creation of the Indian Adoption Project, a landmark 1958 federal program originally seen as a great stride for Native American equality. [2] However, the project was heavily criticized by Native groups who instead urged for the creation and passing of the Indian Child Welfare Act of 1978 (ICWA): an act that gives tribal governments exclusive jurisdiction over children on a reservation and preemptive jurisdiction over children with at least one tribally affiliated biological parent who do not live on a reservation in foster care and adoption proceedings. [3] The act was passed with the intention of protecting Native children, while also providing Native groups with greater jurisdiction over Native adoption cases. Additionally, the act allows tribal nations to set up facilities to provide counseling to Native families, temporary housing services, and legal help for Native families in any child custody proceeding. Crucially, the act allows the Secretary of the Department of the Interior to allocate grants to support these efforts. While Native groups argued that the Indian Adoption Project was an erasure of their respective cultures, ICWA was seen as a means of protecting against the infringement of their rights and a potential disruption to the U.S. government’s pattern of perpetuating the same assimilatory systems. 

Almost 50 years after ICWA was passed by Congress, Haaland v Brackeen, a currently ongoing case, has thrown the act’s constitutionality into question. [4] However, the act does not violate the Equal Protection Clause of the Fourteenth Amendment or any of the other legislative provisions cited in the court hearings. ICWA’s overturning would not only be a step backwards for the sovereignty of Native groups in the United States, but would also violate a precedent with an extensive history.Recently, despite the massive Native support for ICWA’s passage, the act and its constitutionality have been thrown into question. Prior to the Haaland v Brackeen case, Adoptive Couple v Baby Girl (2013) challenged the breadth of ICWA by restricting the definition of parent to adults with custody. Yet even in 2013, when the majority decision subsequently restricted ICWA by confining what “parent” means under the act, the act’s constitutionality was not put into question. [5] In the opinion of the Court, delivered by Justice Alito, he states, “[a]s our detailed discussion of the terms of ICWA makes clear, our decision is not based on a “[p]olicy disagreement with Congress’ judgment,'' clearly implying ICWA’s overall constitutionality. [6] Currently, the plaintiffs in Haaland v Brackeen—the result of four consolidated cases from Louisiana, Indiana, Texas, and the Brackeen family—contend that ICWA violates Article 1 Section 8 of the U.S. Constitution, the Nondelegation Doctrine, the Anti-commandeering Doctrine of the Tenth Amendment, and the Equal Protection Clause. [7] The case was initially presented in the United States District Court for the Northern District of Texas in Dallas in 2018, when the Brackeen family attempted to adopt their adopted Native child’s younger sister but were unable to after interference from the child’s extended family. In accordance with ICWA, the court granted custody of the child to her Native family. [8] The Brackeen family appealed the hearing in a district court, which found that ICWA violated the Anti-commandeering Doctrine. [9] This doctrine restricts the power of the federal government by stating that whatever rights are not explicitly delegated to the federal government are rights of the states. [10] The district court agreed that the right to regulate cultural preferences for the purposes of adoption is held by the states; therefore, ICWA was found to be unconstitutional. 

After the finding of the district court was announced, the Navajo Nation petitioned for a writ of certiorari, an appeal to the next higher court (in this case the United States Court of Appeals for the Fifth Circuit), which was set to hit the federal court in 2021. [11] In April 2021, when presented to the Fifth Circuit of Appeals—which only has jurisdiction in Louisiana, Mississippi, and Texas—the court determined that ICWA violates the Equal Protection Clause but disagreed with the district court’s Anti-commandeering Doctrine ruling. [12] Following the ruling, the Brackeen family petitioned for a writ of certiorari at the Supreme Court, which was heard in November 2022. [13] Although this was not the first time ICWA had been put under a critical lens, when the case hit the federal district court in Texas, it was the first time the act was found to be unconstitutional at the federal level.

More specifically with regard to the Anti-commandeering Doctrine, Article 1 Section 8 states that Congress has the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” [14] “Commerce” can open itself up to encapsulate both social and economic relations, meaning that under Article 1 Section 8 Clause 3, ICWA does not violate the rights of states. The Anti-commandeering Doctrine established to reserve the rights of states over that of the federal government “does not apply when Congress evenhandedly regulates activity in which both States and private actors engage.” [15] This means that the Article then does not apply when Congress regulates this activity since Tribal courts are “private actors” in relation to the state. 

However, out of all the claims of ICWA being unconstitutional presented by the plaintiffs, unconstitutionality under the Equal Protection Clause is arguably the most notable. This claim was the basis for the Court of Appeals’ opinion, which collectively form the most powerful court in the United States behind the Supreme Court. Under the Equal Protection Clause claim, the plaintiffs cite that Native American ancestry, which Morton v. Mancari (1974) deemed a political affiliation rather than a racial affiliation, is essentially a proxy for race—which would then violate the Equal Protection Clause. [16] This claim also neglects the United States’ history with Native people and Tribal groups. The federal government has codified this into the Constitution; Article 1 Section 8 is an example of the Constitution explicitly identifying “Indian Tribes” as independent entities, rather than racial groups. [17] This distinction was made to allow the federal government to create resources for Native groups, so ICWA’s overturning would also diminish precedent that protects Native groups and their communities. If ICWA is found to be unconstitutional under the Equal Protection Clause, other tribal-government relations laws that offer resources and/or autonomy to tribes could be found unconstitutional if challenged at the Supreme Court. 

In addition, although neither the Nondelegation Doctrine nor Article 1 Section 8 of the Constitution were successful in challenging the constitutionality of ICWA in the district and federal courts, these arguments still face the Supreme Court. The Nondelegation Doctrine states that Congress cannot delegate its own power onto entities—in this case, the states. [18] The Nondelegation Doctrine is a key part of administrative law as it pertains to jurisdiction. After the opinion of J.W. Hampton v United States (1928), which declared that if Congress is granted the ability to regulate state affairs, Congress must provide an “intelligible principle,” Congress has been able to uphold policies that are “right and just.” [19] The “intelligible principle” is important in state regulation because it allows Congress to justify their policy-making decisions and provides all the states with the same set of guidelines which aligns with the demands of the Nondelegation Doctrine. [20] Since ICWA establishes delineation between the State and Tribal governments, the plaintiffs argue the act violates the Nondelegation Doctrine because it introduces jurisdiction over what the plaintiffs believe is beyond Congress’s power. [21]However, as found by the Court of Appeals for the Fifth Circuit, ICWA does not violate the Nondelegation Doctrine since there is a clear motive and incentive to ensure the safety of Native children which contextually was essential at the time of its enactment—and continues to be. 

Native child welfare laws like ICWA are not unique to the United States. Around the world, colonialist countries like Australia, Canada, and New Zealand have Aboriginal child welfare laws in place to protect Aboriginal children and the culture of Aboriginal people. Although all these countries’ acts are flawed and fail to fully meet the needs of Native groups, all of these governments share the belief that it is necessary to protect Native groups given each country’s respective history with colonialism. Australia, for example, has its Aboriginal Affairs Planning Authority Act of 1972, which established an Aboriginal Affairs Planning Authority to better fit the needs of all Aboriginal people within the country. [22] In the case that ICWA gets overturned, the United States opens itself up to continue its history of inflicting genocide against Native people. 

ICWA was established to protect Native children from the ethnic cleansing the United States has perpetuated and facilitated for centuries. Congress has established Native groups as independent entities separate from the states to allow the federal government to better accommodate and protect Native people. Moreover, ICWA does not violate the Equal Protections clause, Anti-commandeering Doctrine, or Non-delegation Doctrine, and is, therefore, constitutional, meaning the Supreme Court should rule accordingly in Brackeen. More importantly, it is right and just to protect Native people in the United States. The United States has an obligation to do so.

[1] Indian Child Welfare Act, Pub. L. 95–608, §1, Nov. 8, 1987, 92 Stat. 3069.

[2] Review of Indian Adoption Project Increases Momentum. 1967. Indian Affairs. U.S. Department of the Interior. April 18, 1967. https://www.bia.gov/as-ia/opa/online-press-release/adoptions-indian-children-increase.

[3] Indian Child Welfare Act §1.

[4] Indian Child Welfare Act §1

[5] Adoptive Couple v. Baby Girl, 570 US 637 (2013).

[6] Adoptive Couple v. Baby Girl, 570 US 637 (2013). 

[7] Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).

[8] Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).

[9] Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).

[10] U.S. Constitution, amend. 10, sec. 4, https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine.

[11] Aboriginal Affairs Planning Authority Act 1972, (WA) (Austl.). 

[12] Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019).

[13] Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019).

[14] U.S. Constitution, amend. 10, sec. 4.

[15] U.S. Constitution, amend. 10, sec. 4.

[16] Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018); Morton v. Mancari, 417 U.S. 535 (1974)

[17] U.S. Constitution, article 1, sec. 8, clause 3, https://constitution.congress.gov/browse/article-1/section-8/clause-3/.

[18] “Nondelegation Doctrine.” n.d. LII / Legal Information Institute, https://www.law.cornell.edu/wex/nondelegation_doctrine.

[19] J. W. Hampton, Jr. & Co. v. United States, 276 US 394 (1928).

[20] “Origin of the Intelligible Principle Standard.” n.d. LII / Legal Information Institute, https://www.law.cornell.edu/constitution-conan/article-1/section-1/origin-of-the-intelligible-principle-standard.

[21] Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019).

[22] Aboriginal Affairs Planning Authority Act 1972, (WA) (Austl.).