By Layni Miramontes*
The Indian Child Welfare Act (ICWA) is a federally enacted statute that became law in 1978 as a response to the disproportionate number of Native children that were being systemically removed from their homes with little to no evidence justifying their removal. ICWA was the legislative response to the U.S. government’s brutal history of enforcing cultural assimilation onto Native groups by removing Native children from their families. Its purpose is to “to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families….” This purpose was achieved by giving tribal governments exclusive jurisdiction over Native children that live on tribal property and the right to intervene in child custody proceedings that involved Native children that do not live on tribal property. Specifically, the Act includes a “placement preference” in child custody determinations that prefers placing Native children with Native families, over non-Native families.
Haaland v. Brackeen is a pending Supreme Court case in which the Court will decide the constitutionality of ICWA. The plaintiffs in this case include the states of Texas, Indiana, and Louisiana, non-Natives who sought to adopt Native children, and one biological mother of a Native child. The individual plaintiffs listed are white couples that attempted to adopt, or did adopt, Native children. The Cliffords, a Minnesota family, fostered a Native child, Child P., and later sought to adopt her. They were confronted with legal battles from the Child P’s biological grandmother, who eventually gained custody of the Native child. The Brackeens had previously adopted a Native child, A.L.M, in 2018, and are now seeking to adopt her biological brother. The Librettis had also adopted a Native child, Baby O, in 2018, but in their case, the Native biological mother supported the adoption. Despite Baby O’s mother’s support, the Ysleta del sur Pueblo Tribe (which the biological father belongs) attempted to intervene in the custody proceedings and remove the Baby O from the Lebrettis. This attempt eventually failed and the Pueblo Tribe agreed to settle once the Lebrettis joined in the constitutional challenge of ICWA.
Haaland v. Brackeen was initially filed by the above plaintiffs against the United States in the District Court for the Northern District of Texas, in late 2017. The case quickly caught the attention of country and various indigenous groups, and the Department of the Interior, the Department of Health and Human Service, the Bureau of Indian Affairs, along with several other federal officials and Tribes intervened and joined the fight in support of ICWA.
These plaintiffs made two main arguments challenging the constitutionality of ICWA. First, the plaintiffs argue that the statute violates the Equal Protection Clause of the Fourteenth Amendment, because the statute “imposes ‘race-based’ restrictions on foster care and adoption, which may not be in the child’s best interest.” The plaintiff’s second argument rests of the Anti-Commandeering Doctrine under the Tenth Amendment. The Anti-Commandeering Doctrine prohibits Congress from “commandeering” areas of law that are reserved to the state through the Tenth Amendment. In essence, the plaintiffs are arguing that Congress exceeded its authority in enacting ICWA and that states should not be charged with complying with a law that Congress never had the authority to enact.
The Texas District Court ruled in favor of the plaintiffs, holding that ICWA violated both the Fourteenth and Tenth Amendments. The United States Court of Appeals for the Fifth Circuit reversed the decision of the District Court, reestablishing the ICWA was constitutional. Eventually, the Fifth Circuit agreed to review the case en banc, which resulted in a non-unanimous 325-page opinion. The Fifth Circuit held that Congress had the authority to enact ICWA and that the Act’s reliance on the definition of an “Indian child” was not necessarily based on race. Following this decision, all parties, including the Department of Justice, Tribal Groups, the state of Texas, and the individual plaintiffs, asked to court to grant certiorari and review the Fifth Circuit’s decision.
After this extensive litigation, and the filings of amicus briefs by 479 Native Tribes, 62 American Indian Organizations, 87 members of Congress, 23 states and Washington D.C., all in support of the ICWA, Haaland v. Brackeen finally reached oral argument in front of the Supreme Court on November 9, 2022. As of now, the constitutionality of ICWA is solely in the province of the Supreme Court as we await their decision.
Legal scholars have expressed concern over the possibility of the Supreme Court finding ICWA to be unconstitutional, warning that it could have “catastrophic consequences” for the future of Tribal and United States relations. The American Bar Association noted that Haaland v. Brackeen “means nothing less to the tribes than the validation and continuation of their existence as sovereign nations.” Considering the United States government’s horrific treatment of Native people in the past, the Act serves important purposes in preserving tribal culture and heritage. The loss of the right of Tribal Governments to exercise exclusive jurisdiction over child welfare proceedings and to intervene in cases dealing with Native children living outside of the reservation could lead to the devastating destruction of Native communities. The only thing that is known for certain is that the future of ICWA is in the hands of nine unelected justices, who are comfortable overturning law that millions of people have come to rely on.
*Layni Miramontes is a Note & Comment editor on JLI Vol. 41.
 Brackeen v. Haaland, 994 F.3d 249, 62 (5th Cir. 2021).
 Id. at 58–60.
 Id. at 60–61.