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December 07, 2022

Haaland v. Brackeen, Cherokee Nation v. Brackeen, Texas v. Haaland, and Brackeen v. Haaland


Is the Indian Child Welfare Act Unconstitutional?


This is a consolidation of four cases from the Fifth Circuit challenging the constitutionality of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-63. The act applies to certain child-custody proceedings involving Indian children, from foster care to adoption. The enabling constitutional provision is Article I, Section 8, which grants the federal government authority to regulate commerce with Indian tribes. Petitioners in the appeal are Texas and a group of seven individual plaintiffs. Respondents are Secretary of the Interior Deb Haaland and other federal officials and a separate group of four tribes that intervened. The petitioners won the first round at the district court, which denied the respondents’ motion to dismiss. The court found the law unconstitutional in several ways, and also found that Congress did not have the authority to enact the ICWA. A divided panel at the circuit court affirmed the district court, but an en banc panel granted rehearing. It then issued eight opinions, a per curiam opinion that summarized the court’s holdings and seven other opinions. Two of those had majority support only in part. It resulted in four petitions for certiorari, which the Supreme Court granted.

   Haaland v. Brackeen
Cherokee Nation v. Brackeen
Texas v. Haaland,
Brackeen v. Haaland

 Docket Nos.21-376, 21-377, 21-378, 21-380

 Argument Date: November 9, 2022 From: The Fifth Circuit

 by Barbara L.Jones
Minneapolis, MN


  1. Was the Indian Child Welfare Act (ICWA) legally enacted?
  2. If it was legally enacted, is it constitutional under either a strict scrutiny standard or a rational basis review?
  3. Does it discriminate on the basis of race?
  4. Do the petitioners have standing to challenge the Fifth Amendment and commandeering and nondelegation principles, and if they do, does ICWA violate them?


 The ICWA was enacted in 1978 to respond to concerns that Indian children were being unnecessarily separated from their families and sent to boarding schools or placed in non-Indian families. The act sets out a hierarchy of possible out-of-home placements for children defined as Indian under the law. It prefers the child’s extended family, members of the child’s tribe or a tribe where the child is eligible for membership, or another Indian family to placement with a non-Indian caretaker.

The underlying lawsuit that led to this appeal derives from the individual petitioners’ efforts to foster or adopt children with Indian ancestry. ICWA involvement threatened to prevent an adoption or placement, and in one case succeeded. The petitioners’ standing was challenged at the district court, but was not decided because the court found the statute unconstitutional. The Fifth Circuit found standing but split on the merits.

Texas joined the individual plaintiffs to allege ICWA and its implementing regulations exceed Congress’s power under Article I, violate the equal protection component of the Fifth Amendment, and “run afoul” of the anticommandeering and nondelegation doctrines of the Constitution. The latter arguments are based on ICWA’s various requirements of the states, including notice to tribes, active efforts in placement, and recordkeeping provisions.

Case Analysis

Petitioner briefs have been filed by Texas and by the individual petitioners. They certainly overlap but are not identical.

Texas’s first argument is that Congress lacks Article I authority over state child-custody proceedings. When the ICWA was passed, it was justified by Article 1, Section 8, Clause 3 of the Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Texas states that there is no identified treaty with any tribe that addresses child custody (although treaties recognize sovereignty). “Children are not articles of commerce under the Indian Commerce Clause,” Texas argues. “The individual petitioners also argue that the Indian Commerce Clause does not justify ICWA’s placement preferences.” Adoption proceedings are not commercial interactions with Indian tribes, they note. “The Court should recognize that Congress’s powers relating to Indian affairs have limits, just like any Article I power.”

Secondly, petitioners argue that the ICWA categorizes children based on genetics and ancestry and potential adoptive parents based on their race. Texas refutes the respondents’ argument that disparate treatment of children is political, not racial, because it applies when children are not tribal members and/or do not live on a reservation. The purpose of the statute is to “shore up tribe’s numbers,” which is unconstitutional, as are the government’s means to achieve it, they argue.

The individual petitioners also argue that the ICWA includes racial classifications that demand the highest standard of review, which is strict scrutiny. Strict scrutiny requires that racial classifications be narrowly tailored to suit a compelling government interest and are the least restrictive means for doing so. The ICWA’s separate child-placement scheme for “Indian children” is not a political classification, because it is not limited to tribal members, tribal lands, or tribal courts. “ICWA is untethered to promoting tribal self-government, and instead is suffused with a racial purpose,” the individual parties argue.

The ICWA also fails the more lenient rational basis review, which requires the law to rationally relate to any conceivably legitimate public purpose, the individual parties argue. The stated public purpose is to preserve tribal relations and cultural standards in Indian communities, as well as prevent the removal of Indian children from Indian lands and Indian families. But petitioners question whether the rational relationship exists since the ICWA is not always in the best interests of Indian children and does not prevent the removal of children from tribal lands since it often applies to children who do not live on a reservation.

The rational basis test for Indian law matters was upheld in Morton v. Mancari, 417 U.S. 535 (1974), and cases decided thereafter. Mancari said that the designation of “Indian” and “tribes” was political, not racial, and therefore not suspect. Petitioners reject this distinction. “ICWA’s racial purpose and overt race-preference regime could hardly have been more brazen,” Texas writes.

Texas further argues that the ICWA compounds its constitutional faults by “commandeering” state actors to participate. “Congress cannot compel Texas to administer what is effectively a federal child-custody regime,” the state argues.

Moreover, since the statute allows Indian tribes to alter the ICWA’s placement preferences, it violates the nondelegation clause, Texas asserts. The individual petitioners agree with the commandeering and nondelegation arguments.

Unsurprisingly, the tribal defendants support the ICWA as enacted to fulfill the government’s trust duties to Indian tribes and families. They characterize the law as establishing minimum federal requirements over state-court custody proceedings involving an Indian child in order to support tribal self-governance and ensure tribal survival. They argue that the ICWA is limited because it applies only to involuntary proceedings seeking foster care or determination of parental rights. Also, they note that the adoptive preference for Indians and tribal members only applies when there is conflict between possible adoptive parents.

The tribes assert that various ICWA requirements fall within the federal government’s duty of trust to Indians. This includes the requirements that a court make “active efforts” to prevent out-of-home placement necessarily such that the state must find an expert to testify that the child is at risk of serious emotional or physical damage and that the tribe be notified of the case.

Although removals of Indian children are far less common than when the law was enacted, state systems are frequently dysfunctional and the ICWA remains necessary, the tribes assert.

As to the constitutional authority argument raised by the petitioners, the tribes argue that the Court has long held that Congress has plenary power to legislate concerning Indians. “Multiple enumerated powers confirm that Congress may legislate to fulfill its trust duties to Indians by protecting them from harm,” they argue. That includes the Indian Commerce Clause, which extends to all “intercourse” between Indians and non-Indians, including Indian children, the tribes assert.

They also argue that the individual plaintiffs lack standing to press their equal protection claims. According to the tribes, the individual plaintiffs’ equal protection claims lack redressability because the lower federal courts’ judgments would not have bound the state courts. They do not have an injury-in-fact because the child welfare cases have ended and cannot support an across-the-board challenge to the ICWA.

Next, the tribes continue that the ICWA comports with equal protection because it draws political and not racial classifications. “ICWA furthers tribal self-government in the most fundamental way, by protecting the next generation.” It uses parentage, not race, to define membership-eligible children to ensure a close relationship between child and tribe. The ICWA readily satisfies the rational basis standard.

The ICWA’s requirements of using state actors, keeping records, and so forth are merely ministerial duties that accord with the Tenth Amendment, they argue. 

The federal parties raise essentially the same arguments raised by the tribes. They agree that the ICWA is a valid exercise of Congress’s plenary power over Indian affairs. “It is a necessary consequence of the constitutional structure, in which Indian tribes occupy a unique status as domestic dependent sovereigns.” Preventing the breakup of Indian families falls within Congress’s power.

The federal parties continue by asserting that an even-handed enforcement of the ICWA in state courts is authorized by the Supremacy Clause and does not present an anticommandeering problem.

The federal officials further the tribes’ equal protection argument by claiming that the states’ and individuals’ equal protection argument does not present a justiciable claim. “Texas lacks parens patriae standing to sue the federal government, and the individual plaintiffs lack injury fairly traceable to the challenged provisions that would be redressed by the relief sought in this suit,” they contend.

Additionally, the separate classification of Indians has long been deemed political, not racial, and thus subject only to rational basis review. The nondelegation challenge also fails because Texas lacks standing to challenge it, having shown no injury from it, the officials conclude.


The case means nothing less to the tribes than the validation and continuation of their existence as sovereign nations. It also means that the United States may not, once again, break its promised trust duty to the nations, the tribes argue. It also would be a major rewriting of the U.S. Code. If the Article I challenge to the legislation holds sway, it would have significant effects on a lot of legislation

The significance to the individual petitioners who see their efforts to love and care for Indian children thwarted is obvious. Texas claims that these parents are reluctant to adopt again.

To Texas, the case means its continued ability to run its own court system and protect Indian children according to their best interests. It alleges that children subject to the ICWA are at greater risk for abuse and neglect than other children. It calls the ICWA’s racial purpose and racial preference “brazen” and as presenting grave federalism problems. 

The American Bar Association (ABA) filed an amicus brief in support of the ICWA. It argues “Congress enacted ICWA under valid constitutional authority and on the basis of an extensive body of evidence and law—not only individual stories. It is not for this Court to overturn that legislative judgment.”

The American Pediatric Association and the American Medical Association argue “persistent health inequities are the direct result of the historical trauma [American Indian/American Native] communities have experienced from centuries of harmful federal and state policies toward [Indian children].” The associations claim that the ICWA is an important tool to combat these inequities.

A brief filed on behalf of 497 tribes and 62 tribal Indian organizations also supports the statute, arguing plaintiffs’ arguments threaten scores of laws passed for the benefit of millions of tribal members living off-reservation and to rewrite the relationship between Congress and hundreds of federally recognized tribes. It is motivated by the federal government’s trust power, sovereignty, and Article I.

Barbara Jones

Attorney and Writer

Barbara Jones is an attorney and writer in Minnesota. She can be reached at 651.587.7803 or [email protected].

PREVIEW of United States Supreme Court Cases 50, no. 2 (October 31, 2022): 41–45. © 2022 American Bar Association


For Petitioners Deb Haaland, Secretary of the Interior, et al.(Elizabeth B. Prelogar, Solicitor General, 202.514.2217)

For Respondents Cherokee Nation, et al.(Ian Heath Gershengorn, 202.639.6869)

For Respondents Chad Everet Brackeen, et al.(Matthew Dempsey McGill, 202.887.3680)

For Respondent Navajo Nation (Paul Wesley Spruhan, 928.871.6210)

For Respondent Texas (Judd Edward Stone II, 512.936.1700)


In Support of Individual and State Parties

  • Academy of Adoption and Assisted Reproduction Attorneys and National Council for Adoption (Larry Stuart Jenkins, 801.328.3600)
  • Christian Alliance for Indian Child Welfare and ICWA Children and Families (Krystal Brunner Swendsboe, 202.719.4197)
  • Foster Parents and Pacific Legal Foundation (Oliver James Dunford, 916.503.9060)
  • Goldwater Institute, et al. (Timothy Mason Sandefur, 602.462.5000)
  • New Civil Liberties Alliance (Brian Rosner, 202.869.5210)
  • Ohio and Oklahoma (Benjamin Michael Flowers, 614.466.8980)
  • Project on Fair Representation (John Michael Connolly, 703.243.9423)

In Support of the Federal and Tribal Parties

  • 87 Members of Congress (Alan Evan Schoenfeld, 212.230.8800)
  • 180 Indian Tribes and 35 Tribal Organizations (Erin Christine Dougherty Lynch, 907.276.0680)
  • 497 Indian Tribes and 62 Tribal and Indian Organizations (Erin Christine Dougherty Lynch, 907.276.0680)
  • Administrative Law and Constitutional Law Professors (David Steven Coale, 214.981.3100)
  • American Academy of Pediatrics and American Medical Association (Keith Bradley, 303.830.1776)
  • American Bar Association (Geoffrey D. Strommer, 503.242.1745)
  • American Civil Liberties Union and 14 Affiliates (Kathleen Roberta Hartnett, 415.693.2000)
  • American Historical Association and Organization of American Historians (Ze-wen Julius Chen, 202.887.4475)
  • American Psychological Association, Society of Indian Psychologists, Indiana Psychological Association, Louisiana Psychological Association, and Texas Psychological Association (Beth Susan Brinkmann, 202.662.5312)
  • Aubrey Nelson and Sam Evans-Brown (April Erin Olson, 480.921.9296)
  • California (Joshua Patashnik, 619.738.9628)
  • Casey Family Programs and 10 Other Child Welfare and Adoption Organizations (Hyland Hunt, 202.868.6915)
  • Constitutional Accountability Center (Brianne Jenna Gorod, 202.296.6889)
  • Family Defense Providers (Charles Rothfeld, 202.263.3233)
  • Former Foster Children (Rebecca Ann Patterson, 907.258.6377)
  • Indian Law Professors (April Dennise Youpee-Roll, 213.683.9536)
  • Los Angeles County (Melania Vartanian, 213.808.8777)
  • National Association of Counsel for Children and 30 Other Children’s Rights Organizations (Kathryn Ann Eidmann, 213.385.2977)
  • National Indigenous Women’s Resource Center (Mary Kathryn Nagle, 202.407.0591)
  • Professor Gregory Ablavsky (Michelle T. Miano, 505.842.6123)
  • Robyn Bradshaw (Conor Denali Tucker, 323.210.2900)
  • Senator James Abourezk (Daniel P. Sheehan, 831.706.6826) 

In Support of Neither Party

  • Citizens for Equal Rights Foundation (Lawrence A. Kogan, 917.565.1521)