Haaland v. Brackeen, 599 U.S. 255 (2023), was a Supreme Court of the United States case brought by the states of Texas, Louisiana, and Indiana, and individual plaintiffs, that sought to declare the Indian Child Welfare Act (ICWA) unconstitutional. In addition to Haaland v. Brackeen (Docket No. 21-376), three additional cases were consolidated to be heard at the same time: Cherokee Nation v. Brackeen (Docket No. 21-377), Texas v. Haaland (Docket No. 21-378), and Brackeen v. Haaland (Docket No. 21-380).
The matter originally came up in a Texas District Court on an adoption petition filed by Chad and Jennifer Brackeen. After their effort was challenged by the Navajo Nation, the Brackeens brought suit in the U.S. District Court in Fort Worth. The Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians intervened in the case. The U.S. District Court declared that the ICWA was unconstitutional and the case was appealed.
The Fifth Circuit Court of Appeals reversed the District Court in a panel opinion. The full court, on rehearing the case en banc, held that parts of the law, that set federal standards for lower and state courts, were constitutional, but that the parts of the law that required state agencies to perform certain acts were unconstitutional as a violation of the Tenth Amendment.
The Supreme Court heard the case on November 9, 2022, and the decision was handed down on June 15, 2023. In a 7–2 ruling, the Supreme Court affirmed the Fifth Circuit's determination that the ICWA is consistent with congressional powers. The appellant claims of state commandeering were rejected, reversing the Fifth Circuit's decision. No determinations were made as to the appellant's Fourteenth Amendment claims, due to lack of standing.
Background Indian Child Welfare Act
In 1978, the Congress enacted a law to protect American Indian children from removal from their tribes to be adopted by non-Indians.Jessie Shaw, Commandeering the Indian Child Welfare Act: Native American Rights Exception to Tenth Amendment Challenges, ; Lucy Dempsey, Equity over Equality: Equal Protection and the Indian Child Welfare Act, ; Bradley E. Tinker, Brackeen v. Zinke, , Art. 14 (online only) (2018). Surveys by the Association on American Indian Affairs conducted in 1969 and 1974 indicated that between 25 and 35 percent of Indian children in states with a large Indian American population were being removed from their homes, mainly from intact families, and being placed in non-Indian homes., 2 (1995); Troy R. Johnson, The State and the American Indian: Who Gets the Indian Child, (1999); Shaw, at 2010; Dempsey, at 417. This was often not in the best interest of the child, but for racial reasons, with "programs that took Native American children from their homes and placed them into boarding schools as part of a targeted process of assimilation."Shaw, at 2010.
Congress established the following order of priorities for placing an Indian child who had to be removed from a home. First, the child should be placed with a member of the child's extended family, other members of the child's tribe, or other Indian families. Second, the child could be placed in a foster home approved by the child's tribe, or third, in a foster home approved by the state or other non-Indian authority. Finally, they could be placed in an institution operated or approved by an Indian tribe.Dempsey, at 424, fn64 & fn65; Johnson, at 209.
Brackeen adoption attempt In June 2016, a 10-month-old Navajo boy was placed with Chad and Jennifer Brackeen, a former civil engineer and an anesthesiologist, respectively, after his Navajo mother (who lived in Texas) was found to be using drugs.Shaw, at 2014; Onalee R. Chappeau, Trusting the Tribe: Understanding the Tensions of the Indian Child Welfare Act, 241, 265–66 (2020); Jan Hoffman, Custody Fight Pits Texas Couple Against a Law Favoring Tribes, , June 5, 2019, at A1 (hereinafter Hoffman, Custody Fight); Arnessa Garrett, NYT spotlights white Fort Worth couple's fight to adopt Native American child, , June 5, 2019, online (hereinafter Garrett, Spotlights); Roxanna Asgarian, How a white evangelical family could dismantle adoption protections for Native children, (Feb. 20, 2020, 7:30 A.M) (hereinafter Asgarian, Protections). The father of the child is Cherokee. In 2017 a Texas state court terminated the parental rights of both the biological parents. Under the provisions of the ICWA, the Navajo Nation stepped in and sought to place the child with a Navajo family, but that failed and the Brackeens were allowed to adopt the child.Chappeau, at 266; Hoffman, Custody Fight; Garrett, Spotlights; Asgarian, Protections; Nora Mabie, US Supreme Court to hear Brackeen v. Haaland, a case challenging Indian Child Welfare Act, (Feb. 28, 2022, 2:02 p.m.) (last accessed Mar. 20, 2022) (hereinafter Mabie, Supreme Court); Roxanna Asgarian, Texas case could change adoption rules for Native American children, and undercut tribal rights, (Nov. 10, 2022) (hereinafter Asgarian, Texas case). The Brackeens later attempted to adopt the boy's sister in state court, but the girl's extended family also sought to take in the girl.Shaw, at 2014; Hoffman, Custody Fight. The Brackeens then filed suit in federal court to overturn the ICWA on the grounds of racial discrimination.Shaw, at 2015; Hoffman, Custody Fight; Asgarian, Protections.
State trial court The adoption petition for the sister by the Brackeens was heard in state District Court by Judge Alex Kim, who stated that ICWA violated the Texas Constitution.Hoffman, Custody Fight. In state court, the Brackeens argued that they had a more stable environment and more resources than the child's Navajo relations, and would therefore be better for the child. Following the presentation of evidence, the state's attorney stated that according to state guidelines, the child should be placed with her Navajo family. Judge Kim disagreed and placed the child with the Brackeen family, but allowed limited visitation with her Navajo family.Hoffman, Custody Fight; Garrett, Spotlights. Both sides were unhappy with portions of the decision and appealed, settlement was subsequently reached and the state appeal was dismissed.In the Interest of A.M., a Child, Nos. 02-17-00298 and 02-17-00300 (Tex. App.—Fort Worth, Dec. 7, 2017, no pet.) (not designated for publication).
Libretti adoption In March 2016, a newborn girl was surrendered by her mother and subsequently placed with Nick and Heather Libretti. According to the Nevada law, the mother gave up her parental rights when she surrendered the child. The child's father was found and he expressed a desire to raise her, but, as he was homeless and abusing substances, she was not placed with him. The child's paternal grandmother was a member of the Tigua Pueblo tribe, and the tribe indicated that they intended to intervene if the child was not placed with relatives. Though the Librettis were able to adopt the child, they joined a lawsuit challenging ICWA, stating that the law had violated their constitutional rights.
Clifford adoption attempt In 2016, a 5-year-old girl was placed with Jason and Danielle Clifford in Minnesota. When the girl was 3 years old, her parents were arrested for drugs and child neglect, and their parental rights were terminated. The maternal grandmother, who was a member of White Earth Ojibwe Nation, was found to be unfit to raise the child by advocates for the child. The tribe initially stated that the child did not qualify for tribal membership. However, in January 2017, as the Cliffords were preparing to adopt the child, the tribe intervened, saying that they had lacked relevant information when they had found her to be ineligible. The tribe held that the child should be placed with her grandmother. The child was placed with her grandmother, and the Cliffords joined the Brackeen suit.
U.S. District Court
The Brackeens' federal lawsuit was filed in the federal District Court in Fort Worth in October 2017, and assigned to Judge Reed O'Connor.Hoffman, Custody Fight; Asgarian, Protections. The Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians intervened in the case.Brackeen v. Zinke, 338 F. Supp. 3d 514, 520 (N.D. Tex. 2018) (hereinafter cited as Brackeen I); National Indian Law Library, 2018 Federal Courts Cases, (accessed on Apr. 10, 2021) (hereinafter cited as NARF, 2018 Federal Court Cases); Mabie, Supreme Court. Attorney Kathryn Fort was officially admitted pro hac vice on June 20, 2018 along with the Indian Law Clinic took the initiative to intervene in the case. Their co-counsel Kilpatrick Townsend & Stockton LLP also lent their support to the cause. The primary objective behind their intervention was to ensure that the Native voices were heard and represented fairly when the court ultimately decided the case.
Plaintiffs The states of Texas, Louisiana, and Indiana were the state plaintiffs, while the non-Indians Brackeens, Librettis, Cliffords, and Ms. Hernandez were individual plaintiffs.Tinker, at 2. The Librettis (Nick and Heather) had sought to adopt a Tigua Pueblo child, with the approval of the child's mother, Altagracia Hernandez. The Tigua Pueblo tribe intervened in the Nevada state court proceedings, but agreed not to contest the adoption in late 2018. The Cliffords (Jason and Danielle) had attempted to adopt a child whose grandmother was a member of the White Earth Band of the Ojibwe Tribe in Minnesota. In the Clifford case, the child was placed with the maternal grandmother in accordance with ICWA by the Minnesota court that heard their case.Chappeau, at 267–68.
Defendants The federal defendants included the Department of the Interior and Secretary Ryan Zinke, the Bureau of Indian Affairs and Director Bryan C. Rice, and the Department of Health and Human Services and Secretary Alex Azar.Chappeau, at fn 180, 265.
Summary judgment In 2018, Judge O'Connor issued an order finding that:
It was the first time a constitutional challenge to the ICWA had been successful.Shaw, at 2008; Dempsey, at 414.
Court of Appeals
Procedural background After the District Court found that the ICWA and the applicable federal regulations "violated equal protection, the Tenth Amendment, and the nondelegation doctrine",Brackeen v. Bernhardt, 937 F.3d 406, 420 (5th Cir. 2019) (hereinafter cited as Brackeen II). all sides appealed the case to the United States Court of Appeals for the Fifth Circuit. The case was assigned to a panel consisting of Senior Judge Jacques L. Wiener Jr., Judge James L. Dennis, and Chief Judge Priscilla Owen and argued on March 13, 2019.
Panel opinion Judge Dennis delivered the opinion of the Court on August 9, 2019, which was modified on August 16, 2019.Brackeen II, 936 F.3d at 406. The opinion reversed the decision of the District Court, and rendered judgment for the federal government and the Indian tribes.Brackeen II, 936 F.3d at 413; Dempsey, at 414; Erin Dougherty Lynch and Dan Lewerenz, Brackeen v. Bernhardt - Indian Child Welfare Act, (last visited Mar. 12, 2022) (hereinafter cited as Lynch, Brackeen). Dennis ruled that although the Brackeens and other plaintiffs had standing to sue,Brackeen II, 936 F.3d at 424. the District Court erred by considering this to be a race-based law.Brackeen II, 936 F.3d at 426. Instead, it was a law based on political considerations, citing a United States Supreme Court case, United States v. Antelope which had held "that federal legislation with respect to Indian tribes ... is not based upon impermissible racial classifications.Brackeen II, 936 F.3d at 426, internal citation omitted.