Haaland v. Brackeen: Summary and Analysis

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Annabelle Lyne | PhD Student in History | University of Kansas

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For anyone reading the recent Supreme Court decision on Haarland v. Brackeen released this past month, I recommend skipping first to Justice Gorsuch’s concurring opinion then returning to the first opinion. Gorsuch’s concise history of federal programs for Native American boarding schools and adoptions is essential backing for fully appreciating the landmark decision we have here in this case. To view this adoption case without recognizing this essential context vastly warps the true significance of the case and leads you exactly into the trap the Texas petitioners tried to lay. Thankfully, our Supreme Court justices knew their history … or at least enough of it.

Justice Amy Coney Barrett wrote the opinion which upheld ICWA, the Indian Child Welfare Act of 1978. Barnett herself is an adoptive mother of two Haitian children so, although one dissenter accused the opinion of being distant and insensitive to the families in question, it is clear that the adoption case must have been dear to Barrett’s heart.

The main points in question in Barrett’s opinion included whether the Indian Commerce Clause entitles Congress to impose on states federal regulations for Native American adoption proceedings. This power, which conflicts with “commandeering” provisions set out to protect state sovereignty from an overly involved federal government, is backed by the “plenary power” of the federal government to oversee certain Native American affairs. Although this notion is attached in Justice Thomas’ dissent, Barrett and the Court hold that the Commerce Clause in the US Constitution authorizes the government to legislate on an individual level for Native Americans, not just as a government entity, thus interpreting the Clause’s mention of “commodities” and “commerce” to mean interaction, thus including Native children.

The Tenth Amendment, according to Barrett’s opinion, bars Congress from “Comand[ing the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” (19) The issue here was that states, like Texas, are forced to follow ICWA’s extensive ranking system which ensures Native families are the first pick, which they felt was an unnecessary intrusion on their court and social service system from the federal government. The Court upheld these provisions of ICWA because in adoption proceedings the burden is on the tribe to come forward with suitable families and assert control over their youth member, it is not the burden of the state services to find Native families. They ruled that any personal information kept on the child was for administrative purposes and coherent with similar recordkeeping requirements the states must follow.

Interestingly, the Court refused to address one of the most important issues in this case, that of the equal protection challenge. Aside from stating that Texas had no standing to challenge a placement preference because it cannot assert claims on behalf of its citizens, the court dismissed the equal protection challenge because of lack of standing: the petitioners failed to show any “injury” that the court’s decision could provide “relief.” (30) Justice Kavanaugh, however, reminds us in his opinion that the issue of equal protection could be addressed by the court in another similar case in the future.

Within the dissents of Justices Thomas and Alito occurred contrastive interpretations of one of the most important aspects of Federal Indian Law. Thomas provided another history of federal-tribal relations to accompany Gorsuch’s, this time starting much earlier from the Constitution’s framing. His attacks on the Opinion’s interpretation of the Commerce Clause are based on his own findings on the definition of “Commerce” as understood in a 1773 edition of A Dictionary of the English Language and conclude that “there is simply no reason to think that there is some sort of free-floating, unlimited power over all things related to Indians.” In contrast to the Court’s findings in this case, as well as in the wave of Supreme Court cases in the late 1970s that legislated acts like ICWA, Thomas does not find the Trade and Intercourse Acts nor the Commerce Clause of the Constitution to refer to anything other than trading of material goods and interactions between nations on “economic activity.” (19) From this, he takes us to his interpretation of the plenary power doctrine, which defined the federal government as a “guardian” to the Native American tribal nations. Thomas asserts that nowhere in the Chief Justice John Marshall rulings from the 1830s, those ruling which defined the federal-tribal relationship, was the current interpretation of plenary power found. In doing so, he asserts that “No law from that time even came close to asserting a general police power over citizens who happened to be Indians—by, for example, regulating the acts of Indians who were also citizens and who lived within the sole jurisdiction of States (and not on Indian lands)” (31) In this interpretation, Justice Thomas denies ICWA’s constitutionality because it does not regulate his understanding of commerce, tribal governments, or tribal lands and is not based on treaties or trust funds from the federal government. He argues that as family law matters have traditionally been state jurisdiction, the federal government has no right to intervene regardless of if the case involves a Native American. Thomas’s dissent contradicts decades of laws, such as ICWA, which, according to him, have misinterpreted the meaning of the federal-Native relationship. Had the court chosen to follow this opinion, the face of Federal Indian Law would be changed forever and countless court decisions would be in question.

Overall, the Supreme Court decision in Brackeen v. Haarland helped solidify the place of the Indian Child Welfare Act. Since 1978 the act has helped to protect countless Native youth from removal from their reservations, to counter the historical patterns of Natives being sent to white families, and has enabled tribal cultures to be passed down to another generation. With the previous ruling in Morton v. Mancari upholding Native Americans as a political, not racial category, it is unlikely that that an equal protection challenge will take ICWA down anytime soon, especially with the level of commitment to Native sovereignty we have seen here in the courts today, particularly through Justices Barrett and Gorsuch.

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Haaland v. Brackeen Argument Analysis

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1. On Whether ICWA exceeds Congress’s Powers

The first claim the majority addresses is whether, in passing ICWA, Congress exceeded its powers outlined in Article I of the U.S. Constitution. This is a broad claim regarding not ICWA itself, but rather, the powers of Congress to enact such a policy in the first place. To this point, Barrett argues that “in a long line of cases, we have characterized Congress’s power to legislate with respect to the Indian tribes as “plenary and exclusive”” (10). Textually, the Indian Commerce Clause of Art. I and the Treaty Clause of Art. II both serve as constitutional support for these broad powers. There are also principles the Court views as “inherent in the Constitution’s structure, that empower Congress to legislate over Indian affairs. Together these two arguments provide distinct ways of tethering the broad powers granted to Congress in the Constitution.  

It should be noted, this argument might be surprising to conservative supporters of Justice Barrett given that it runs contrary to how the Federalist Society (of which Justice Barrett is a member) interprets the scope of the Indian Commerce Clause. Similar to an argument given in the next section, an article in the Federalist Society argues that because ICWA does not concern commerce or trade, nor is it an act based on any active treaty or based on any treaty powers, it should not be found constitutional.   

2. Family Matters Beyond Congressional Power

The second claim that Barrett addresses is the petitioner’s claim that family law matters have typically been given to states to decide, and the Federal government has traditionally stayed out of such matters. Thus, given that this case concerns a family law matter, it should follow legal tradition and remain with the states to decide. In response to this theory, Justice Barrett concedes in part that Congress lacks a “general power over domestic relations” but the Constitution does not provide any structural limitations in it legislating such matters. Further, Barrett sees the petitioner's claim as an attempt to derive a specific carving out of the Constitution based on a general claim. The court, however, has recognized a number of instances of congressional attempts to legislate family law matters (see Ridgway v. Ridgway and Hillman v. Maretta) and more specifically with regard to Indian children (Fisher v. District Court of Sixteenth Judicial Dist. of Montana)

Next, Barrett addresses the petitioner’s attempt to come at the issue from another side. This time, the petitioner has a broader claim about Congress’ power to pass a law such as ICWA. Here Barrett argues that in making their case for this claim, the petitioner fails to “grapple with our precedent”, thus they bear the burden of proof in proving ICWA’s unconstitutionality. The legal source of primary concern here is the Indian Commerce Clause. Petitioners argue that the Clause pertains to Indian Tribes as an entity rather than to individual members of said entities. Barrett denies this claim by referencing precedent (U.S. v. Holliday) demonstrating the Court’s belief that dealings with Indian tribes extends to dealings with members of said tribes. Relatedly, perhaps attempting to paint the majority as shrewd capitalists, the petitioners argue that this decision runs the risk of commodifying Native American children. Commerce, they contend, extends only to matters of trade. Thus, to argue that ICC extends to children would make them commodities. To this, Barrett again refers to precedent arguing that the ICC does not just pertain to trade but also “Indian affairs.” And thus, includes more general matters such as adoptions, child welfare, and other family matters.

The last two points offered by the petitioners on this point argue that the principles that justify ICWA are based mostly on matters of war and peace on the one hand, and on the other, does not act as a form of federal treaty between the U.S. government and Indian tribes. To this first point, Barrett argues that the government’s actions following the passing of ICWA negate this claim. Following the passing of ICWA, the government engaged in non-military actions such as “creating departments of Indian affairs, appointing Indian commissioners…” and actions generally seeking to secure and preserve the “friendship of the Indian Nations.” Finally, the treaty argument fails given that a cursory reading of legal history demonstrates that Congress did not pass ICWA with the Treaty Clause as its constitutional justification.

From these two points, the petitioners end their case by arguing that the precedents so far referenced were themselves unconstitutional and inconsistent with its original meaning. In her response, Barrett employs a Dworkinian critique of this approach. Dworkin, a well-regarded legal scholar, argued that judges ought to place the text of a statute in its best light by placing it in the best context given a legal system’s tradition. In this way, a judge is to identify the principle that best unifies previous cases and then apply that principle to the new case. To this point, Barrett argues that the petitioner offers no account of how their argument fits within the landscape of our case law” (17). Now, this might be an instance where two sides are operating on two different approaches to constitutional interpretation.

A textual originalist, for instance, will not be too concerned with reconciling a current case with past case law if they also believe that past cases were themselves unconstitutional. The issue, however, as Barrett sees it, is that the petitioner did not engage with these cases in any substantive way to demonstrate their constitutional inconsistencies – evident by their not asking for these cases to be overruled. Also, an interesting note, Barrett also points out that the petitioners fail to address the potential consequences were the Court to rule in their favor – to prior cases and related statutes. This is interesting, in part, because any consideration of systemic consequences is typically associated with legal pragmatists. I note this because Barrett was nominated and confirmed by a majority conservative Senate with the understanding that she was a textualist cut from the same cloth as the late Justice Antonin Scalia. I do not note this, however, to argue that Barrett has changed her dominant approach to interpretation. In this opinion she has made arguments indicating that her decision falls well within the plain meaning of the text in the relevant areas.

 3. Anti-commandeering Arguments

The third route of argumentation taken by the petitioners regard the anticommandeering doctrine (ACD). ACD is a doctrine the courts have derived from the Tenth Amendment which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Here, Barrett places these arguments into three categories: (1) Requirements pertaining to involuntary proceedings; (2) Challenges to ICWA’s placement preferences; and (3) Legality of ICWA’s demands of lower courts.

In the first category, petitioners focus pertains to the ‘active efforts’ provision of ICWA. Briefly, the active efforts provision requires petitioning in involuntary foster care placement cases to satisfy “the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break of the Indian family and that these efforts have proved unsuccessful” sec. 1912(d). For this argument to be successful, according to Barrett, the petitioner must demonstrate that the statute makes an explicit and exclusive demand of state agencies. This is, however, not the case, for the statute merely refers to “any party.” As such, it is an accidental feature of the statute that it might bring in state agencies, but not an intended one. Finally, Barrett defends the court against the related claim that “any party” can be reasonably said to refer to state agencies given how often cases related to “involuntary proceedings” involve state agencies. Here, she notes that plenty of cases can be cited to refute this claim.

To the second category, the petitioner sought to place pressure on ICWA’s ordering of state agencies to perform a “diligent search” for placements. Again, the issue here is the ordering of state agencies to perform an action at the behest of Congress. Again, Barrett posits that the statute makes no such demand of any kind on state agencies. Rather, the burden falls on the tribe or “other objecting party to produce a higher-ranked placement” (24). Finally, the petitioners, on this same point, argue that when a state statute conflicts with a federal statute, courts are obligated to give the state preference. This, however, Barrett notes, runs contrary to the well-established Supremacy Clause. The Supremacy Clause states – in essence – that federal laws represent the law of the land, and thus, take priority over state laws.

The third and final category of the petitioner’s anti-commandeering argument focuses on ICWA’s record keeping provision in section 1951(a). Here, the petitioners argue that Congress cannot require state agencies to perform record keeping tasks on behalf of the federal government. But, again citing the precedent set in Printz, the federal government may compel state agencies to perform tasks that are “ancillary or supportive of judicial tasks.” Further, U.S. legal and legislative history demonstrates that Congress has enacted a number of related tasks to state agencies in support of those duties asked of courts and judges.  

4. Equal Protection Violation

Arguably, the weakest response given by the majority towards a given argument is the final one pertaining to the petitioner’s claim that the majority’s decision violates the 14th Amendment’s Equal Protection Clause. The argument given by the petitioners claims that ICWA infringes on their rights by putting them on unequal footing with Indian parents in the context of adoption. In response, Barrett argues that the petitioner has not demonstrated that the injury may be remedied by a judicial decision. This is the case based primarily on technicalities. Given that a state agency is not a named party in the case. And it is a state agency that would be bound by the Court’s judgment. In short, the majority dismiss this point on a matter of technicality, and do not address the substance of the claim. Arguably, the majority might have feared that in doing so they would be providing a roadmap for future cases.