Brackeen v. Haaland, Part 2: Challenging the Indian Child Welfare Act
November 4, 2021 by
Part 2: The Current Debate Facing the U.S. Supreme Court
For more information about the Indian Child Welfare Act (ICWA) of 1978 and the history of its enactment, please read part one of this series.
Brackeen v. Haaland is a complex case that challenges the constitutionality of the ICWA. In the opinion of some, the case also questions the validity and legality of the sovereignty of Native nations (their ability to govern themselves independently of the U.S. government).
The Indian Child Welfare Act establishes guidelines for how states should handle issues regarding Native children in the child welfare system. The guidelines include addressing child abuse and neglect cases, foster and adoption cases, removal, and out-of-home placement.1 The law gives Native communities a seat at the decision-making table when placing Native children in homes. And not unlike the traditional child welfare system, it prioritizes keeping Native children with members of their tribe whenever possible. The goal of the law is to keep families together, protect the rights of Native people to govern themselves, and support their cultural independence following decades of forced separation and assimilation attempts by the U.S. government.
What Is the Case About and What Questions Are Being Asked of the Court?
The plaintiffs brought the lawsuit in Brackeen v. Haaland in January 2020. The plaintiffs include several couples who hope to adopt or foster children from Indian nations, a woman who wishes for her child of Native descent to be adopted by non-Native people, and the states of Texas, Louisiana, and Indiana which believe the ICWA to be unconstitutional.2 The defendants in the case are the United States, federal agencies (including Secretary of the Interior Deb Haaland), officials responsible for administering the ICWA, and several Indian tribes which stepped in to support the ICWA.3
The case began with a married couple from Texas. The couple fostered multiple non-infant children from the Cherokee Nation over several years. Behavioral issues among those children led the couple to seek to foster and adopt a baby boy, whom they eventually renamed Antonio. Antonio is a baby boy from the Cherokee Nation whose mother had issues with drug addiction—an issue in Native communities that often goes hand-in-hand with generational poverty and systemic oppression. After fostering for a year, the Brackeens decided to adopt with the blessing of the baby’s mother. However, the ICWA gives Native nations the ability to locate a family within the tribe before allowing for adoption by non-Native families. This rule prevented the Brackeens from adopting because the Cherokee Nation found a family willing to adopt the baby. Dissatisfied with this rule, the Brackeens decided to go to court to fight the ICWA and the decision to prevent them from adopting. With the support of the attorney general of Texas and others, the couple fought the law.
The primary issue in the case is whether the ICWA is unconstitutional. The two major questions are: (1) Is the ICWA unconstitutional on the basis of racial discrimination, because it favors Native families in the adoption of Native children? (2) Is this favoring granted by the ICWA an overreach of Congress’ powers in Article I because it impedes the right of states to set standards for placement of children in the child welfare system?4
What Has Already Happened in the Case and Where Is the Case Now?
The first decision in the case came in August 2018, when a judge ruled that the ICWA is unconstitutional because it treats Native children as a different “race.” The defendants appealed the decision.
On April 6, 2021, the U.S. Court of Appeals for the Fifth Circuit released an en banc decision following a hearing by 16 federal judges in Brackeen v. Haaland. En banc is a term used when all judges from a particular court hear a case (in this instance, all judges from the Fifth Circuit).5 The decision document that was released is more than 325 pages long, further demonstrating the complexity of this issue. The decision determined that some portions of the ICWA are constitutional and, as such, should be upheld. However, other parts (like the regulations put into effect by the federal government’s Bureau of Indian Affairs) were found to violate the “anticommandeering” policy of the Constitution “because it forces states, their child welfare agencies, and their courts to act in a certain way.”6
Following this most recent decision, the parties have appealed to the Supreme Court in the hope that the Court will review the case and decide on the ICWA’s overall constitutionality. The Court will look over the details, decide if it wants to review the case, and, if so, which parts of the issue it wishes to review. The Court is expected to announce whether it will take the case sometime in December 2021 or January 2022.7 Up to this point, the Court has received three amicus (friend of the court) briefs from 180 tribal nations, 35 Native organizations, 25 states and the District of Columbia, Casey Family Programs, and ten child welfare and adoption organizations urging the Court to review and uphold the ICWA.8 These briefs are essentially supportive statements by parties not involved in the case to demonstrate that a decision one way or the other will impact parties outside of the present case.9
What Are Some Arguments For and Against Upholding the ICWA?
Those opposed to the ICWA believe that discrimination against non-Native families in the placement of children goes against the Constitution. They argue that the law harms the very children it is meant to protect, as it prevents them from being placed in permanent homes and keeps them trapped in the foster care system. Opponents of the ICWA maintain that the best interests of each individual child should be the only thing considered when it comes to their placement. Their status as Native Americans should have nothing to do with this process.
Those who support the ICWA believe the law protects Native children after years of intentional removal, separation, and displacement. They believe that Native status is a political distinction rather than a racial one.10 Supporters also argue that this is an issue much bigger than the ICWA itself. For example, the Cherokee Nation, the largest tribal nation in the country, tweeted about the issue in March 2019, stating, “If #ICWA opponents in Brackeen v. Bernhardt are successful, it will potentially impact the sovereignty of every tribe, because the plaintiffs view tribes as racial entities, not sovereign governments. #ProudtoProtectICWA #ICWAFact.”11
- What might be some arguments in support of the ICWA? What might be some arguments in opposition?
- What do you think about this case? Do you believe that the ICWA should be upheld? Why or why not?
- What do you think could be some potential consequences if the ICWA is found to be unconstitutional and overturned? What about possible results if it is upheld?
- How does this controversy connect to other issues you have heard about in the news? In history?
- If the Supreme Court reviews this case, how do you think it will rule? Why do you think so?
READ the Fifth Circuit’s decision.
READ more about the case, including amicus briefs.
As always, we encourage you to join the discussion with your comments or questions below!
Featured Image Credit: Native American Rights Fund
 ChildWelfare.gov: https://www.childwelfare.gov/topics/systemwide/diverse-populations/americanindian/icwa/
 Native American Rights Fund: https://www.narf.org/cases/brackeen-v-bernhardt/; Fifth Circuit Decision in Brackeen v. Haaland: https://narf.org/nill/documents/20210406brackeen-opinion5th.pdf
 Native American Rights Fund: https://www.narf.org/cases/brackeen-v-bernhardt/
 SCOTUSBlog: https://www.scotusblog.com/case-files/cases/brackeen-v-haaland/
 Cornell Law School Legal Information Institute https://www.law.cornell.edu/wex/en_banc
 Indianz: https://www.indianz.com/News/2021/04/07/fifth-circuit-court-of-appeals-brackeen-v-haaland/; Indianz: https://www.indianz.com/News/2018/10/05/judge-strikes-down-indian-child-welfare.asp
 National Indian Child Welfare Fund: https://www.nicwa.org/policy-update/
 Native American Rights Fund: https://www.narf.org/icwa-brackeen/
 Smith Gambrell Russell Law: https://sgrlaw.com/ttl-articles/why-and-when-to-file-an-amicus-brief/
 Native American Rights Fund: https://www.narf.org/cases/brackeen-v-bernhardt/
 Cherokee Nation Twitter Feed: https://twitter.com/CherokeeNation/status/1105867500749754370 Native Times: https://www.Nativetimes.com/archives/46-life/commentary/14059-truth-and-reconciliationkill-the-indian-and-save-the-man