Haaland v. Brackeen (2023): The Court Rejects Challenges to the Indian Child Welfare Act

The short answer

In Haaland v. Brackeen, the U.S. Supreme Court turned away a set of constitutional challenges to the Indian Child Welfare Act (ICWA), a federal law about child custody cases involving Indian children. In the Court's words, "we reject all of petitioners' challenges to the statute, some on the merits and others for lack of standing" Haaland v. Brackeen, 599 U.S. 255 (2023). The Court did not decide whether ICWA's placement preferences violate equal protection. It held that no party before it had standing to raise that claim Haaland v. Brackeen, 599 U.S. 255 (2023).

Standing means a person bringing a claim in federal court must show a real injury that is fairly traceable to the defendant's conduct and likely to be fixed by the relief asked for Haaland v. Brackeen, 599 U.S. 255 (2023).

What the case was about

Congress passed ICWA in 1978. The Act "aims to keep Indian children connected to Indian families" Haaland v. Brackeen, 599 U.S. 255 (2023). When a state court decides a case under it, "ICWA governs from start to finish" Haaland v. Brackeen, 599 U.S. 255 (2023).

The Court described what ICWA requires in an involuntary case, meaning one the parents do not consent to Haaland v. Brackeen, 599 U.S. 255 (2023):

• Notice. A party seeking foster care placement or termination must notify the parent or Indian custodian and the child's tribe. They can intervene, and indigent parents or custodians have a right to court-appointed counsel Haaland v. Brackeen, 599 U.S. 255 (2023).
• Active efforts. The party must first show the court that "active efforts" were made to prevent the breakup of the Indian family, and that they failed Haaland v. Brackeen, 599 U.S. 255 (2023).
• Proof. Foster care placement needs clear and convincing evidence, including qualified expert testimony, that continued custody is likely to cause serious emotional or physical damage to the child. Termination needs the same finding "beyond a reasonable doubt" Haaland v. Brackeen, 599 U.S. 255 (2023).
• Placement preferences. These apply to all custody cases involving Indian children and are ranked. For adoption, preference goes to the child's extended family, then other members of the child's tribe, then other Indian families. Courts must follow them absent "good cause" Haaland v. Brackeen, 599 U.S. 255 (2023).

The case grew out of three custody proceedings Haaland v. Brackeen, 599 U.S. 255 (2023). In one, a child was placed in foster care with Chad and Jennifer Brackeen at 10 months old. The Brackeens and the child's biological parents live in Texas. The state court denied the Brackeens' adoption petition, and the Texas Department of Family and Protective Services announced it would move the child to New Mexico. The Brackeens got an emergency stay of the move and filed this lawsuit. The proposed Navajo family then withdrew, and the Brackeens finalized the adoption Haaland v. Brackeen, 599 U.S. 255 (2023). The other two proceedings involved families in Nevada and Minnesota Haaland v. Brackeen, 599 U.S. 255 (2023).

The families sued the federal government. Texas, Indiana and Louisiana joined them, but only Texas kept up the challenge in the Supreme Court Haaland v. Brackeen, 599 U.S. 255 (2023). They argued that Congress lacked power to pass ICWA, that parts of it "commandeer" the States in violation of the Tenth Amendment, that its preferences use racial classifications that unlawfully hinder non-Indian families, and that letting tribes reorder the preferences was an unlawful delegation Haaland v. Brackeen, 599 U.S. 255 (2023).

What the court decided

Justice Barrett delivered the opinion of the Court. Justice Gorsuch concurred, joined by Justices Sotomayor and Jackson as to Parts I and III. Justice Kavanaugh joined the Court's opinion in full and wrote a concurrence. Justices Thomas and Alito each dissented Haaland v. Brackeen, 599 U.S. 255 (2023).

Congress's power. The Court declined to disturb the lower court's conclusion that ICWA is consistent with Article I. It said the challengers had not made arguments that ICWA exceeds Congress's authority under the Court's precedent as it stands today Haaland v. Brackeen, 599 U.S. 255 (2023).

Commandeering. The Tenth Amendment bars Congress from commanding state officers to run a federal program Haaland v. Brackeen, 599 U.S. 255 (2023). The active-efforts rule applies to "any party" who starts an involuntary case, including private people and agencies. The Court noted that Texas's own family code lets certain private parties file termination suits Haaland v. Brackeen, 599 U.S. 255 (2023). The notice, expert-witness and proof rules also apply to private and state actors alike Haaland v. Brackeen, 599 U.S. 255 (2023). The placement preferences do not command state agencies to do anything. They do bind state courts, and the Constitution says "the Judges in every State shall be bound" by valid federal law Haaland v. Brackeen, 599 U.S. 255 (2023). The recordkeeping rules were upheld too Haaland v. Brackeen, 599 U.S. 255 (2023).

Standing. The families lacked standing on equal protection because an order against federal officials would not fix their injury. State courts apply the preferences, and state agencies carry out the placements Haaland v. Brackeen, 599 U.S. 255 (2023). Texas has no equal protection rights of its own, so it lacked standing for that claim and the delegation claim Haaland v. Brackeen, 599 U.S. 255 (2023).

The Court affirmed on Congress's power, reversed on the commandeering claims, and sent the equal protection and delegation claims back with instructions to dismiss for lack of jurisdiction Haaland v. Brackeen, 599 U.S. 255 (2023).

In the court's words

Among other things, this law requires a state court to place an Indian child with an Indian caretaker, if one is available. That is so even if the child is already living with a non-Indian family and the state court thinks it in the child's best interest to stay there.

In plain English: ICWA's placement rule can apply even when the child is settled in a non-Indian home Haaland v. Brackeen, 599 U.S. 255 (2023).

We do not reach the merits of these claims because no party before the Court has standing to raise them.

In plain English: the Court did not say whether the preferences are constitutional. It said these challengers could not ask Haaland v. Brackeen, 599 U.S. 255 (2023).

Why it matters for Texas families

ICWA is federal law, and the Court said it binds state courts. When a state court decides a custody case involving an Indian child, ICWA governs from start to finish Haaland v. Brackeen, 599 U.S. 255 (2023). "Indian child" includes a tribal member, and also a child who is eligible for membership and is the biological child of a member Haaland v. Brackeen, 599 U.S. 255 (2023). If your child may have tribal ties, ask your lawyer whether ICWA applies.

In an ICWA case, termination needs a finding "beyond a reasonable doubt" Haaland v. Brackeen, 599 U.S. 255 (2023). That is higher than the general constitutional minimum for termination, which Santosky v. Kramer set at clear and convincing evidence Santosky v. Kramer, 455 U.S. 745 (1982). See Santosky v. Kramer (1982): The Proof Needed to End Parental Rights. The Court also noted that the active-efforts rule "does not apply to emergency removals" Haaland v. Brackeen, 599 U.S. 255 (2023). ICWA gives indigent parents a right to court-appointed counsel Haaland v. Brackeen, 599 U.S. 255 (2023). Texas law separately requires the court to appoint an attorney ad litem for an indigent parent who opposes a governmental termination suit Tex. Fam. Code §107.013(a). See Your Right to a Lawyer in a Texas CPS Case.

The equal protection question is still open. Justice Kavanaugh, concurring, wrote that it "remains undecided" and is "serious" Haaland v. Brackeen, 599 U.S. 255 (2023). The Court noted that the individual families can challenge ICWA's constitutionality in state court Haaland v. Brackeen, 599 U.S. 255 (2023). A later case could address that question. This page is legal information, not legal advice.

Related

• Santosky v. Kramer (1982): The Proof Needed to End Parental Rights
• Lassiter v. Department of Social Services (1981): Is There a Right to a Free Lawyer in a Termination Case?
• Your Right to a Lawyer in a Texas CPS Case
• The Texas CPS Investigation Process, Step by Step (Family Code §§261.301–261.302)