Last week, the Supreme Court upheld the constitutionality of the Indian Child Welfare Act, or ICWA, in a case addressing sovereignty in adoption proceedings involving Native American children.
The case, Haaland v. Brackeen, consolidated three child custody cases brought by Texas, Indiana, Louisiana and non-Native individuals wanting to adopt Native children. The plaintiffs challenged the constitutionality of the ICWA, which was enacted in 1978 to keep Indian children connected to Indian families. The act prioritizes child placement with Indian families from the child’s tribe or another Indian tribe and protects the right of the child’s tribe to intervene.
Minnesota Sen. Mary Kunesh, who chairs the Health and Human Services Committee at the National Caucus of Native American State Legislators, applauded the decision to uphold protections for Native children and families.
“After months under threat by this legal challenge, the Indian Child Welfare Act will continue to shelter Native children from unjust separation from their families and protect tribes from the devastation of losing connection to the next generation,” Kunesh said.
“After months under threat by this legal challenge, the Indian Child Welfare Act will continue to shelter Native children from unjust separation from their families and protect tribes from the devastation of losing connection to the next generation.”
—Minnesota Sen. Mary Kunesh
Earlier this year, uncertain about the future of act, the Minnesota Legislature passed a measure to further protect Native families and tribal sovereignty in the state regardless of federal law. The updated Minnesota Indian Family Preservation Act codifies and expands on the ICWA. The law acknowledges federally recognized Indian tribes as sovereign political entities and acknowledges that such tribes have the authority to determine jurisdiction for child custody and placement proceedings.
Minnesota was not the only state to act while awaiting the court’s decision. Six states (Colorado, Montana, New Mexico, North Dakota, Oregon and Wyoming) enacted ICWA statutes since the Fifth Circuit heard the case in 2019. Eight other states already had similar laws in place.
Wyoming, for example, codified federal law in statute (2023 WY S 94) earlier this year and established the Indian Child Welfare Act Task Force (2023 WY H 19) to develop legislative recommendations related to the ICWA. New Mexico’s Indian Family Protection Act (2022 HB 135) codified ICWA provisions and expanded federal standards. Unlike the federal law, New Mexico’s Indian Family Protection Act requires the state to notify tribes within 24 hours of any child welfare investigation. The act also defines qualified expert witnesses and requires the state’s child welfare department to make active efforts to identify qualified expert witnesses.
The entire 5th U.S. Circuit Court of Appeals heard the case in 2019. The Supreme Court granted certiorari in February 2022 and heard the case in November. On June 15, 2023, the Supreme Court upheld the circuit court’s conclusion that Congress’ power to legislate Indian affairs is well-established and broad; therefore, the ICWA “is consistent with Congress’ power under Article I of the Constitution.” Justice Amy Coney Barrett wrote the opinion for the seven-member majority. Justices Clarence Thomas and Samuel Alito dissented.
The court addressed the challengers’ claim that the act unconstitutionally abridged states’ traditional authority over issues of family law and held that Congress’ Article I powers preempt state family law. Although state law traditionally governs domestic relations, “the Constitution does not erect a firewall around family law,” and under Article I, conflicting state family laws are preempted. Specifically, the court held in a prior case that it has the power to preempt state law in adoption proceedings involving Indian children. Thomas and Alito argued that the majority ruling impermissibly infringes on state authority.
The court also rejected the challengers’ argument that the act forces state agencies to provide “extensive services” to the parents of Indian children and therefore violated the anti-commandeering doctrine under the 10th Amendment. The court reasoned that to find an anti-commandeering violation, the challengers must show that Congress has mandated a state’s executive or legislative branch to do certain things. Citing the recent case of Murphy v. National Collegiate Athletic Assn., the court concluded that the ICWA applies to “any party … thus sweeping in private individuals and agencies as well as government entities. A demand that either public or private actors can satisfy is unlikely to require the use of sovereign power.”
With respect to the child placement hierarchy, the court further held that the burden of finding a higher-ranked placement under the ICWA is on the tribe or other objecting party, not the state; therefore, “petitioners assert an anticommandeering challenge to a provision that does not command state agencies to do anything.”
The court did not address the equal protection or nondelegation challenges to the ICWA’s placement preferences, ruling that no party to the case had standing to raise them. It reasoned that the challengers did not prove that the placement preferences caused an injury that a court could remedy. Enjoining the ICWA, a federal statute, does not “solve” their issue because state courts, not federal courts, apply and state agencies, not federal agencies, carry out the placement preferences.
The state officials who implement the act are not parties to the case. Citing South Carolina v. Katzenbach, the court also noted that a state—in this case, Texas—“has no equal protection rights of its own, and it cannot assert equal protection claims on behalf of its citizens against the Federal Government.”
Susan Frederick is the senior federal affairs counsel in NCSL’s State-Federal Relations Program; Hannah Ditzenberger is a policy associate in NCSL’s Children and Families Program.