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The Supreme Court handed down a huge win for the rights of Native American parents, children, and tribes on Thursday, rejecting a slew of challenges to the Indian Child Welfare Act in what amounted to the second surprise victory for progressives at the court in two weeks. Its 7–2 decision in Haaland v. Brackeen is a sharp rebuke to red states’ crusade to dismantle Congress’ authority to protect Native peoples as well as a strong affirmation of the federal government’s vital role in keeping Native communities together. While the court left open the door to future challenges on other grounds, Justice Amy Coney Barrett’s opinion for the court—joined by the three progressive justices and conservatives Neil Gorsuch, Brett Kavanaugh, and John Roberts—does not sound like a mere stay of execution. It reads more like a declaration that Congress has ample constitutional authority to redress centuries of horrific persecution against Native Americans inflicted by the government itself.
Enacted in 1978, the Indian Child Welfare Act marked an effort to combat the forced assimilation of Native children through brutal and overtly racist tactics. Gorsuch recounted this history in his stirring concurrence, and it is worth repeating to illustrate why the law is so important. In the 1870s, the federal government launched a campaign to wipe out tribal identities by creating “Indian boarding schools.” Native children were abducted from their families, prohibited from practicing any cultural traditions, denied contact with their tribes, and forced to abandon all traces of their Indigenous identity. Children who disobeyed these commands were beaten, sometimes to death. Sexual abuse, disease, and starvation ran rampant. The government funded these “schools” using the profits collected from selling Native land.
In the 20th century, the quest for total assimilation devolved from the federal government to the states. Local governments regularly snatched Native children from their families and tribes and adopted them out to white parents. As Gorsuch’s concurrence described, this willful, systematic family separation rested on prejudiced beliefs about Native parents’ inherent inferiority, and it devastated tribal membership for decades.
Congress passed the Indian Child Welfare Act in 1978 to address the problem. The law establishes several important safeguards that apply to adoption and foster care proceedings in state court. When adjudicating custody of a Native child, state courts must notify the tribe in which the child is enrolled (or is eligible for enrollment) and allow it to intervene. Courts must also adhere to a series of federal mandates by, for instance, making “active efforts” to avoid breaking up Native families and transmitting records to the secretary of the interior. When placing the child in a new home, the court must give “preference” to their extended family or other members of their tribe. But it can override these preferences whenever it has “good cause” to do so.
Brackeen began when several foster parents, joined by the state of Texas, asked the federal judiciary to destroy the ICWA in its entirety. Their lawsuit was designed to strip away Congress’ overall power to protect Native people and their land from exploitation by states and corporations. For that reason, corporate attorneys lined up to support these plaintiffs, pouring money into the effort to subvert tribal sovereignty. They raised three major arguments: First, the law exceeds Congress’ constitutional authority; second, it unlawfully “commandeers” the states; and third, it violates equal protection principles by classifying children on the basis of race.
On Thursday, the court rejected the first two arguments on the merits and turned away the third on standing grounds. Barrett’s majority opinion explained that Congress’ “muscular” constitutional power to regulate “commerce … with the Indian Tribes” extends well beyond mere trade, allowing regulation in areas of “criminal law, domestic violence, employment, property, tax,” and family relations. And these sweeping powers strictly limit states’ own authority to interfere with tribal affairs. From an originalist perspective, this analysis is clearly correct. One of the Articles of Confederation’s main flaws was its effort to divide control over Indian affairs between the states and the central government, a failed experiment that led to violent, state-sanctioned white “settlement” of Native lands. In drafting the Constitution, then, the Framers shifted this authority to the federal government. Ample historical evidence illustrates that they defined commerce among the tribes very broadly to encompass an array of noneconomic activities—including the adoption of children.
So, Barrett concluded, Congress’ power to regulate the adoption of Native children is well settled. It follows that when the ICWA used this power to stop state courts from breaking up Native families, the law triggered no constitutional concerns. The plaintiffs’ claim that the ICWA somehow “commandeers” the states, in violation of the 10th Amendment, Barrett wrote, “runs headlong into the Constitution.” The Supremacy Clause ensures that “when Congress enacts a valid statute,” state law is “naturally preempted to the extent of any conflict with a federal statute.” The ICWA constitutes a valid effort to set the rules of the road for state court proceedings involving Native children, so the specific requirements it imposes on the states are perfectly lawful. As Barrett put it tartly: “End of story.”
Finally, Barrett turned away the plaintiffs’ equal protection claims on standing grounds. The foster parents, she explained, asked for an injunction against the secretary of the interior to block the ICWA’s enforcement. But the secretary does not enforce the law; states do. So an injunction against the secretary, or any other federal official, would not “remedy the alleged injury.” And because they did not seek a plausible remedy, the foster parents do not have standing. Meanwhile, Texas lacks standing because states have no right to raise equal protection claims on their own or on behalf of their residents. Its “creative” arguments notwithstanding, Barrett concluded, Texas could not demonstrate an actual “injury in fact.”
Kavanaugh joined the opinion in full but warned that he felt “the equal protection issue is serious” because the ICWA discriminated on the basis “of the child’s race.” That is incorrect. The Supreme Court has long held that tribal membership or eligibility is a political classification subject to relaxed scrutiny under the Constitution. This view aligns with that of the Framers—who, after all, classified Native people on the basis of their “Indian” identity in the Constitution. If Kavanaugh is right that the ICWA’s classifications are impermissibly discriminatory, then vast portions of the federal code must be unconstitutional, because thousands of laws and regulations identify and regulate Native people on the basis of tribal membership or eligibility. Thankfully, Kavanaugh’s opinion cannot be squared with the Constitution’s text or history, and no other justice joined it. The emphatic tone of Barrett’s opinion, along with her refusal to plant any time bombs on the equal protection issue, implies that a majority of the court does not wish to go down this dangerous path. Barrett endorsed the key constitutional principles upon which the ICWA rests, and it is difficult to see her obliterating the law on different grounds in the future.
The dissents from Justices Clarence Thomas and Samuel Alito are disgraceful. Thomas holds the radical view that Congress has no general power to regulate Native affairs, a position rooted in a law review article that has been meticulously, comprehensively debunked. It is the height of intellectual insincerity for the justice to cling to these views after they have been so thoroughly rebutted by real historical evidence. Alito’s narrower dissent reads like an ode to the White Savior, insisting that if Congress actually cared about Native children, it would let Texas remove them from their tribes and place them with “loving” white families. Gorsuch’s concurrence implicitly rebukes Alito’s vision of the states’ allegedly legitimate role in depriving children of their Native heritage.
Brackeen is a huge victory for tribal sovereignty and Native families. There will be more challenges to come, but they seem unlikelier than ever to prevail. The decision affirms a principle expressed well by Gorsuch: The Constitution promises tribes sovereignty “for as long as they wish to keep it.” On Thursday, they kept it.
