Haaland v. Brackeen: The Uncertainty of Indian Sovereignty

In early November, the Supreme Court will hear Haaland v. Brackeen. The case stands to answer two major questions: does the Indian Child Welfare Act of 1978 (ICWA) discriminate on the basis of race, thereby violating the United States Constitution, and does its federal regulation over child placement unjustly commandeer state powers? [1]

Haaland v. Brackeen is determinedly significant to the Indian population as a perceived threat to tribal sovereignty and Federal Indian law. Prior to the passage of the ICWA, 75-80% of Indian families lost at least one of their children to the foster care system. [2] This statistic was argued to be a consequence of a fundamental lack of understanding—or dislike—amongst non-tribal authorities of the practices, culture, and religion of various tribes. Children were taken from their homes, often arbitrarily, and given to non-Indian foster families to be raised with no cultural ties. Such action was viewed as a threat to the overall livelihood of tribal culture. The ICWA protected against this threat by regulating the placement of Indian children to “(1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.” [3] Should none of these options prove viable, the child would be placed into an institution approved by their tribe. 

In 2016, a Navajo baby was taken from his parents by Child Protective Services and given to a non-Indian couple, the Brackeens. In 2017, the baby’s biological parents lost official legal custody, instigating the involvement of the Navajo Nation, who attempted to place the baby with a member of their tribe in accordance with the ICWA but were unable to do so. In a court battle over the placement of the baby—and later, his biological sister whom the couple also tried to adopt—the Brackeens argued that the ICWA was a violation of the Constitution under the Equal Protection Clause because it discriminated on the basis of race. [4] Here Haaland v. Brackeen’s first fundamental question arises: is this the case? The answer, I argue, is no. ICWA is a regulation based on citizenship, not race. The legislation only applies to “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of title 43.” [5] It does not apply to all those considered Native American by “blood or heritage,” but rather only to those with citizenship within a tribe. [6] Therefore, an Indian child having specific adoption regulations is not discriminatory on the basis of race because race is not a factor in the legislation. On the grounds of sovereignty, a tribe should have the right to determine the fate of one of its citizens. This reasoning seems to be the general legal consensus. In 2021, the Fifth Circuit Court conducted an en banc review of the ICWA, which ultimately led to four petitions to the Supreme Court. In its 325-page decision, the Court admitted that the ICWA’s classification of an “Indian child” was not racial and therefore did not violate the Equal Protection Clause. [7] That said, the Court remained divided over whether or not this could be said of the ICWA’s vague mention of “other Indian families.” [8] 

The Fifth Circuit Court’s en banc review also claimed that the ICWA violated the anti-commandeering doctrine within the Tenth Amendment because state agents and agencies are forced to take action according to the provisions within the legislation. This policy appears to be a primary source of division in Haaland v. Brackeen. It involves a deeply complex interaction between state and federal jurisdiction. I am inclined to adhere to the argument that the ICWA is not a violation of the anti-commandeering doctrine because it falls within the jurisdiction of federal authority. The ICWA, intended to establish federal standards for the placement of Indian children, also creates federal rights. Many of its sections include references to said rights, visible in S.1917: “Tribal affiliation information and other information for protection of rights from tribal relationship.” [9] According to United States law, federal rights permit federal jurisdiction. Consequently, as testified by a precedent set by the Supreme Court in Central Vermont Railway v. White, federal courts may dictate the behaviors of state courts in cases involving federal rights. [10] In these cases, unjust commandeering is entirely unrelated. This argument is likely to be assumed by supporters of the ICWA and its constitutionality due to this precedent. 

Regardless of the specifics of its legality, the ramifications of overturning a law which stopped over one-third of Indian children from being taken from their tribes, stripped of their culture and community, cannot be understated. Haaland v. Brackeen is the single most significant case involving Indian sovereignty and cultural sustainability within the twenty-first century.

Grace Posorske is a junior at Brown University concentrating in International & Public Affairs and Classics. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at grace_posorske@brown.edu.