Haaland v. Brackeen consolidates four cases challenging multiple provisions of the Indian Child Welfare Act (ICWA) as unconstitutional. Challengers include Texas, Indiana, and Louisiana and individuals who would like to adopt Indian children.

The ICWA was adopted in the 1970s because Congress was concerned about “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.”

Per the ICWA if an Indian child is to be placed in foster care or parental rights are to be terminated, “active effort” must be made to provide remedial services and rehabilitative programs and an expert witness must testify that “continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” The ICWA lists preferred adoptive placements in this order: with family members, members of a child’s tribe, and “other Indians families” and preferred foster care placements in this order:  with family members, foster homes of the child’s tribe, or “Indian foster home[s].” The ICWA also contains record-keeping requirements.

The entire Fifth Circuit heard this case. The Supreme Court has been asked to decide five issues.

The anticommandeering doctrine “prohibits federal laws commanding the executive or legislative branch of a state government to act or refrain from acting.” Texas and the individual plaintiffs argue that all the ICWA provisions described above violate the anticommandeering doctrine because they require state agencies to take action. In a long and complicated opinion, the Fifth Circuit agreed.

By an equally divided vote the Fifth Circuit concluded that the ICWA’s placement preferences for “other Indian families” for adoption and “Indian foster home[s]” for foster care violates the Fifth Amendment’s Equal Protection Clause. According to Judge Duncan, “the preference privileges Indian families of any tribe, regardless of their connection to the child's tribe, over all non-Indian families. ICWA's classification therefore does not rationally further link children to their tribes.” The United States (and the Cherokee Nation) disagree: “[L]egislation does not fail the rational-basis standard applicable here ‘merely because the classifications it makes are imperfect.’”

The United States and the Cherokee Nation likewise argue that the Fifth Circuit didn’t have “standing” to decide the equal protection issue. The United States points out that “other Indian families” and “Indian foster home[s]” are third-ranked preferences meaning it is not certain they would come into play if the challengers tried to adopt an Indian child.

The individual plaintiffs challenge more broadly on equal protection grounds ICWA’s requirements that states administer a separate child-placement regime for “Indian children” which favor Indians for child placement.  

A majority of the Fifth Circuit held that the ICWA complies with Congress’s Article I authority to “regulate Commerce . . . with Indian tribes.” The individual plaintiffs and Texas disagree. The individual plaintiffs argue the ICWA doesn’t regulate commerce because “children are not commodities or objects of commerce.” They also argue the ICWA doesn’t regulate commerce “with the Indian Tribes.” “Rather, the placement preferences govern the relationship between prospective parents (including non-tribal members) and ‘Indian children’ (including non-tribal members).”

The question in a non-delegation challenge is whether a statute has impermissibly “delegated legislative power.” Section 1915(c) of the ICWA allows Indian tribes to establish through tribal resolution a different order of preferred placement than the order described above. A majority of the Fifth Circuit concluded this authority doesn’t violate the non-delegation doctrine because “Congress may incorporate the laws of another sovereign into federal law.” But, according to Texas, the “ICWA does not incorporate the laws of Indian tribes; it gives them the power to change the law enacted by Congress.”