Haaland v. Brackeen and the Impact on Tribal Sovereignty 

Taylor Kugler*

Last summer, the U.S. Supreme Court’s decision in Haaland v. Brackeen represented an important victory in protecting tribal sovereignty and the Indian Child Welfare Act (ICWA). ICWA, a federal law aimed at keeping Indian children connected to Indian families, stemmed from the U.S. government’s practice of forced assimilation of Native American children into non-Native culture.¹ During the 19^th and 20^th centuries, the government  compelled Native children to attend boarding schools where they would be stripped of their Native names and given English ones, their cultural clothing would be confiscated, and their hair would be cut, “a point of shame in many [N]ative communities.”² Moreover, Native children could not use their Native language or associate with other members of their tribe.³ As a result, many Native families refused to send their children to boarding school which led to Congress authorizing the Secretary of the Interior to “prevent the issuing of rations or the furnishing of subsistence” to those non-conforming families.⁴

The practice of separating Native children from their identities and families was perpetuated through the Indian Adoption Project.⁵ This project was a federal program aimed “to stimulate adoption of American Indian children by Caucasian families on a nationwide basis.”⁶ In 1969 and 1974, the Association on American Indian Affairs completed two studies which showed that “25 to 35 percent of all Indian children had been separated from their families and placed in foster homes, adoptive homes or institutions, and 90 percent of those placements were in non-Indian homes.”⁷ In response to these statistics and other alarming testimony heard by Congress, ICWA was enacted in 1978.⁸ In child welfare proceedings, ICWA requires that states use active efforts to reunify children with their parents, rather than the routine standard of reasonable efforts, that states provide notice to the Tribes and parents, and that Tribes are allowed to intervene in cases involving Native children.⁹ Additionally, ICWA establishes adoptive placement preferences for Native children in child-welfare proceedings.¹⁰ In adoption proceedings, ICWA requires that a Native child be placed with “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families” unless there is “good cause” to depart.¹¹ 

Haaland v. Brackeen involved a non-Native foster family, the Brackeens, who wanted to adopt a Native baby.¹² Their original adoption petition was denied as they “did not provide clear and convincing evidence of good cause to justify a departure from the placement preferences.”¹³ While the Brackeens were successful on appeal in adopting the Native child, they also filed another federal lawsuit to strike down ICWA entirely.¹⁴ The federal complaint included the Texas Attorneys General’s office and two other foster families, the Cliffords and the Librettis, as plaintiffs.¹⁵ Together, they challenged the constitutionality of ICWA, claiming that it restricted their ability to adopt Native children.¹⁶ Specifically, the plaintiffs argued that Congress lacked the authority to enact ICWA, that ICWA violated the anticommandeering principle of the Tenth Amendment, and that ICWA violated the Equal Protection clause as it “employs racial classifications that unlawfully hinder non-Indian families from fostering or adopting Indian children.”¹⁷

In a 7-2 opinion delivered by Justice Amy Coney Barrett, the Supreme Court upheld ICWA as a whole. The Court reasoned that Congress has broad power to legislate with respect to Native Americans, that Congress’s power extends to family law matters, and that Congress has the power to displace the state in adoption proceedings involving Indian children, all well-established principles of law.¹⁸ Moreover, Justice Barrett noted that while “Congress’s Article I powers rarely touch state family law,” that does not equate to family law being wholly exempt from federal regulation.¹⁹ Notably, the Court also stated, “[i]f there are arguments that ICWA exceeds Congress’s authority as precedent stands today, petitioners do not make them here.”²⁰ Addressing the argument that ICWA violates the Tenth Amendment, the Court declared that as ICWA applies to both public and private proceedings, it does not compel state action that violates the Tenth Amendment.²¹ Lastly, the Court did not make a decision on the Equal Protection challenge to ICWA’s placement preferences or the non-delegation challenge to § 1915(c) finding the parties did not have standing to raise these questions.²²

While this ruling was a huge victory for Native children and the Native community as a whole, it was an important win for tribal sovereignty, as well. Had the Court invalidated ICWA on equal protection grounds, the “entire field of Indian law and policy would have been severely called into question, or worse, would have marked the beginning of lawsuits aimed at dismantling tribal sovereignty.”²³ Tribes fear that a breakdown of tribal sovereignty would lead to an “open season on everything from Indian gaming revenues to actual tribal designations, governments, and reservations.”²⁴ Tribes not only “control half of all gaming revenue in the U.S.” but they also control land that “holds about one-third of the country’s fossil fuel resources — largely made up of coal, natural gas, and oil. The total valuation of all these resources is around 1.5 trillion dollars.”²⁵ Interestingly, the Brackeens were represented pro bono by a large corporate firm with clients like Shell, Chevron, and Amazon. This law firm also represents two of the top three casino and gaming companies in the world in addition to the pipeline company that built the Dakota Access Pipeline.²⁶ Many of the arguments made on behalf of the Brackeens reportedly mirror similar arguments the firm has made to prevent the opening of tribal casinos.²⁷ This leads one to question if Brackeen v. Haaland was truly about the best interests of Native children or if it was a thinly veiled, larger attempt to break down tribal sovereignty.

* Taylor Kugler, J.D. Candidate, University of St. Thomas School of Law Class of 2025, Associate Editor of the University of St. Thomas Law Journal.

1. Indian Child Welfare Act, Assoc. on Am. Indian Aff., https://www.indian-affairs.org/icwa.html (last visited Jan. 25, 2024). ↩︎
2. Haaland v. Brackeen, 599 U.S. 255, 290 (2023) (Gorsuch, J., concurring). ↩︎
3. Id. ↩︎
4. Id. at 289. ↩︎
5. Gabrielle Glaser, The Brutal Past and Uncertain Future of Native Adoptions, N.Y. Times (May 16, 2023), https://www.nytimes.com/2023/05/16/nyregion/indian-child-welfare-act-supreme-court.html. ↩︎
6. Id. ↩︎
7. Indian Child Welfare Act, supra note 1. ↩︎
8. Indian Child Welfare Act, supra note 1. ↩︎
9. Indian Child Welfare Act, supra note 1. ↩︎
10. 25 U.S.C. § 1915(a). ↩︎
11. Id. ↩︎
12. Brackeen, 599 U.S. at 268–69. ↩︎
13. Brackeen v. Zinke, 338 F. Supp. 3d 514, 526 (N.D. Tex. 2018). ↩︎
14. See id. ↩︎
15. Brackeen, 599 U.S. at 271. ↩︎
16. Id. ↩︎
17. Id. at 271–72. ↩︎
18. Id. at 273–75. ↩︎
19. Id. at 275–76. ↩︎
20. Id. at 277. ↩︎
21. Id. at 278–79. ↩︎
22. Id. at 285. ↩︎
23. Affie B. Ellis, An “Enduring Place”: The Constitutional Promise of Tribal Sovereignty, 46 Wyo. Law. 22 (2023). ↩︎
24. Sarah Rose Harper & Jesse Phelps, Texas, Big Oil Lawyers Target Native Children in a Bid to End Tribal Sovereignty, Lakota People’s L. Project (updated June 15, 2023), https://lakotalaw.org/news/2021-09-17/icwa-sovereignty. ↩︎
25. Id. ↩︎
26. This Land, Pro Bono, Crooked Media, at 22:30–23:00 (Sept. 13, 2021), https://crooked.com/podcast/5-pro-bono/. ↩︎
27. Id. at 23:00–23:30. ↩︎