Chemerinsky: SCOTUS ruling on Indian Child Welfare Act is win for Native Americans, but key issues remain unresolved
Erwin Chemerinsky. Photo by Jim Block.
The United States has a long and despicable history of removing Native American children from their families. As Justice Neil Gorsuch observed, “there was mass removal of Indian children from their families during the 1950s, 1960s and 1970s by state officials and private parties.” This horrific practice actually began almost 150 years ago.
Congress, in 1978, lamented that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.”
In response, the Indian Child Welfare Act, which provides that preference should be given to Native American families when Native American children are placed in foster care or for adoption, was adopted. As the U.S. Supreme Court noted, the “law requires a state court to place an Indian child with an Indian caretaker, if one is available. That is so even if the child is already living with a non-Indian family and the state court thinks it in the child’s best interest to stay there.”
In Haaland v. Brackeen, decided June 15, the Supreme Court upheld the constitutionality of the Indian Child Welfare Act. It was a 7-2 decision, with Justice Amy Coney Barrett writing the opinion for the court and Justices Clarence Thomas and Samuel Alito dissenting. The court was emphatic in upholding the law, declaring: “[T]he bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.” But it also should be noted that one of the most difficult issues in the case—whether the statute is an impermissible racial preference—was not resolved and will surely be addressed by the court in the future.
Facts of the case
Several families challenged the constitutionality of the Indian Child Welfare Act in federal court. The named plaintiffs in the case were the Brackeens. A child referred to as “A.L.M.” was placed in foster care with Chad and Jennifer Brackeen when he was 10 months old. The Brackeens sought to adopt him after he had lived with them for over a year. A.L.M.’s biological parents are both Native American; his mother is a member of the Navajo Nation, and his father is a member of the Cherokee Nation. Both biological parents supported having the Brackeens adopt A.L.M., but the Navajo and Cherokee Nations did not support this adoption. The Navajo Nation said it had an alternative placement for the child with nonrelative tribal members living in New Mexico. Under the Indian Child Welfare Act, the child would be placed with the proposed Navajo family. The Brackeens challenged the constitutionality of this law.
They and other families filed suit in federal court against the United States; the Department of the Interior and its secretary (Debra Haaland); the Bureau of Indian Affairs and its director; and the Department of Health and Human Services and its secretary. Texas intervened to challenge the constitutionality of the law, while several Native American tribes intervened to defend it.
The federal district court declared the Indian Child Welfare Act unconstitutional. The U.S. Court of Appeals for the 5th Circuit, in an en banc decision affirmed this conclusion, though it did not agree with all of the lower court’s analysis.
What the court decided and why it matters
The Supreme Court considered several constitutional challenges to the Indian Child Welfare Act. First, the court rejected the argument that the statute exceeded the scope of Congress’s powers under Article I of the Constitution. The Constitution gives Congress the authority to regulate “commerce … with the Indian tribes.” This has been interpreted to mean not just a power to regulate trade but also broad authority to legislate as to Indian affairs. Additionally, the federal government has the power to make treaties with Indian tribes and the structure of the Constitution has been interpreted as reinforcing expansive federal powers in this area.
The court noted that it had long “characterized Congress’s power to legislate with respect to the Indian tribes as ‘plenary and exclusive.’” The court said, “Congress’s power to legislate with respect to Indians is well established and broad.” Although it is not unlimited authority, the court found that the Indian Child Welfare Act fit within Congress’s powers to legislate as to Indian affairs.
Second, the court rejected the argument that the Indian Child Welfare Act was impermissible “commandeering” of state governments in violation of the 10th Amendment. The Supreme Court—in cases such as New York v. United States (1992), Printz v. United States (1997) and Murphy v. NCAA (2018)—held that Congress cannot compel state governments to enact laws or regulations or to administer federal mandates. The challengers argued that the Indian Child Welfare Act impermissibly commandeered state courts to follow detailed procedures when considering the placement of a Native American child to give preference to Native American families, and to maintain and transmit to the federal government detailed records.
The court rejected these arguments that the 10th Amendment was violated by the act. It stressed that the law applies whether a foster placement or an adoption is privately initiated or state-initiated and said, “Legislation that applies ‘evenhandedly’ to state and private actors does not typically implicate the 10th Amendment.” Most important, the court emphasized that where Congress has the authority to legislate, it can prescribe legal standards and these preempt state law and must be followed by state courts. This is what Congress did with the Indian Child Welfare Act in requiring that a preference be given for Native American families when Native American children are placed in foster care or for adoption. It is not impermissible commandeering to require that state courts apply federal law. Nor is it unconstitutional, the court said, for Congress to compel state courts to keep records in these cases and to provide them to the federal government.
The court’s reasoning in upholding the Indian Child Welfare Act will have important implications for other matters as well. If the court had narrowly interpreted Congress’s power to legislate as to Indian affairs, say, by limiting it to regulating trade, many other federal statutes in this area would have been constitutionally vulnerable. If the court had ruled that Congress cannot force state courts to apply federal law, the implications would have been huge.
What the court did not decide
There were two other legal challenges to the Indian Child Welfare Act that the court did not resolve, instead dismissing them on standing grounds. One claim is that the Act is an unconstitutional racial preference in its requiring that Native Americans be preferred over non-Native Americans in placing children in foster care and for adoption. The other argument was that the statute impermissibly delegates federal legislative power to Indian tribes.
The court said that neither the individual plaintiffs nor the state of Texas had standing to raise these claims. The court explained that no relief that could be granted against the defendants—federal officials and federal agencies—could remedy these harms. The court also said, “Texas also lacks standing to challenge the placement preferences [because it] has no equal protection rights of its own.”
The equal protection claim especially is likely to arise in the future and ultimately need to be resolved by the Supreme Court. In fact, Justice Brett Kavanaugh wrote a concurring opinion to express the view that “the equal protection issue is serious.” The underlying question is whether a preference for Native Americans should be regarded as a racial preference, as Justice Kavanaugh asserts, or as a preference based on political status because Native American tribes are sovereign entities.
If the court ultimately decides that this is a racial preference, then it is unlikely to be held by a court that has expressed great hostility to racial preferences. It then also would endanger many programs, including scholarship programs, that provide benefits to Native Americans. But if this is seen as a preference based on political status, it is far more likely to be upheld.
But the court left all of that for future cases. The bottom line is that Haaland v. Brackeen is a resounding victory for Native Americans and the Indian Child Welfare Act.
ABAJournal.com: “Indian adoption law upheld by Supreme Court, but equal protection issue remains undecided”
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.