Haaland v. Brackeen
The Supreme Court upheld the Indian Child Welfare Act, rejecting challenges to Congress's authority to pass it and to its effect on state governments, while leaving open a separate question about whether the law's preferences amount to race-based discrimination.
The ruling keeps intact a 1978 law that requires state courts handling custody proceedings for Native American children to prioritize Native families — a protection tribes argue is essential to their survival, and one that non-Native families seeking to adopt Native children have long fought to overturn.
“Thus, we reiterate that Congress's authority to legislate with respect to Indians is not unbounded. It is plenary within its sphere, but even a sizeable sphere has borders.”
The majority defining the outer limits of Congress's broad but not unlimited power over Indian affairs.
How it got here: A federal district court struck down ICWA; the en banc Fifth Circuit partly reversed; the Supreme Court agreed to hear the case on cross-petitions from all sides.
The Case in Depth
What happened
The Indian Child Welfare Act requires state courts to follow a specific placement hierarchy when placing Native American children in foster care or adoption — preferring extended family, then tribal members, then any Native family, before considering non-Native households. Three sets of non-Native Texas and Minnesota families, along with the state of Texas, sued after tribal nations used the law to block or delay adoptions that the children's own biological parents had supported. In one case, a child had already lived with a non-Native foster family for over a year when a tribe intervened to redirect the placement.
The question before the Court
Can the federal government require state courts to follow a hierarchy of preferences favoring Native American families when placing Native children in foster care or adoption proceedings, and does doing so unconstitutionally commandeer state governments?
The Court's answer
No — the Supreme Court upheld the Indian Child Welfare Act against all challenges it reached on the merits.
On Congress's power to pass the law, the challengers failed to engage meaningfully with decades of precedent recognizing Congress's broad authority over Indian affairs, so the Court declined to strike the law down. On the states' rights challenge, ICWA does not unconstitutionally force state governments to carry out federal policy against their will — its key requirements apply to private parties as well as government agencies, and Congress can always require state courts (unlike state executives or legislatures) to apply valid federal law. Recordkeeping duties imposed on state courts are the kind of ancillary tasks Congress has assigned since the founding.
The Court did not decide whether ICWA's placement preferences amount to racial discrimination — neither the individual families nor Texas had the legal standing to bring that claim in federal court. That question remains open for future lawsuits.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
State courts handling adoption and foster care cases involving Native American children must continue to follow ICWA's preference hierarchy for Native placements. Non-Native families who believe ICWA was wrongly applied to them cannot use a federal lawsuit against federal officials to challenge it — they must raise constitutional claims in state court proceedings. The separate question of whether the law's race-based preferences are constitutional remains unresolved.
What changes now
ICWA remains in force nationwide. State courts must continue to follow its placement preferences and procedural requirements in custody proceedings involving Native American children. The equal protection question — whether ICWA's preferences constitute unconstitutional race-based discrimination — was not decided and remains open. Justice Kavanaugh's concurrence signals that question will need to be addressed when a prospective foster or adoptive parent challenges a specific state-court proceeding where they were denied a placement because of race.
What this does not decide
The Court explicitly left open whether ICWA's placement preferences constitute racial discrimination in violation of equal protection. Justice Kavanaugh's concurrence flagged this as a serious unresolved question. A future lawsuit by a prospective foster or adoptive parent harmed in a specific state-court proceeding could decide it.
Concurrences and dissents
Concurrence — Justice Gorsuch
Justice Gorsuch joined the majority in full but wrote separately — with Justices Sotomayor and Jackson joining Parts I and III — to provide deep historical context. He traces the origins of ICWA to a long federal and state history of forcibly removing Native children through boarding schools and mass adoptions, which he argues makes clear why the law is constitutionally necessary. He also offers his own textual and historical analysis of the Indian Commerce Clause, arguing Congress's power to regulate non-Indians' dealings with Indians is broader than its interstate commerce power but still limited and enumerated — not a blank check.
Concurrence — Justice Kavanaugh
Justice Kavanaugh joined the majority fully but wrote separately to underscore that the Court did not decide — and expressly left open — the equal protection question: whether denying a child a particular placement, or denying a prospective parent the opportunity to adopt, because of the child's race violates the Constitution. He flagged this as a serious issue that courts will need to address when a plaintiff with standing raises it in a state-court proceeding.
Dissent — Justice Thomas
Justice Thomas would hold ICWA unconstitutional. He argues that none of Congress's enumerated powers — the Indian Commerce Clause (which covers trade, not family law), the Treaty Clause (ICWA isn't based on any treaty), or structural foreign-affairs powers — extends to regulating child custody proceedings in state courts for U.S. citizens who happen to be Indian. He traces the 'plenary power' doctrine to a baseless 1886 decision untethered from constitutional text and argues the Court should limit it rather than extend it.
Dissent — Justice Alito
Justice Alito would hold the challenged ICWA provisions unconstitutional on structural grounds. Child custody has been a 'virtually exclusive province of the States' since the founding, and Congress cannot use even a broad Indian affairs power to override that fundamental state prerogative. He emphasizes the real harm to the children in these cases, whose best interests were subordinated to tribal preferences even over the objections of their own biological parents, and argues the Constitution does not permit Congress to displace long-established state authority in this way.
How the Court got there
The legal reasoning, step by step
- Congress has broad authority over Indian affairs drawn from multiple constitutional sources: the Indian Commerce Clause (which covers more than just trade with tribes), historical treaty relationships, structural constitutional principles, and the government's longstanding trust relationship with tribes. This power is not unlimited, but petitioners failed to show — using existing precedent — that ICWA exceeded it, so the Court declined to disturb the lower court's ruling upholding the law.
- Petitioners argued that family law is a state-only domain beyond Congress's reach, but the Court rejected a 'family law carve-out.' When Congress validly exercises any Article I power, it can preempt conflicting state laws — including family law. Because petitioners bore the burden of proving unconstitutionality and didn't engage with existing precedent on its own terms, they fell short.
- The Tenth Amendment bars Congress from directing state governments to carry out federal programs — a rule called the anticommandeering doctrine. But that doctrine doesn't apply when a law requires the same thing of both private parties and government agencies. Because ICWA's 'active efforts' requirement, notice rules, and evidentiary standards apply to 'any party' — not just states — they don't commandeer state sovereign authority.
- ICWA's placement preferences don't commandeer state agencies because, under the Court's 2013 ruling in Adoptive Couple v. Baby Girl, state agencies aren't actually required to search for preferred placements — the burden falls on the tribe or objecting party to produce a higher-ranked candidate. State courts must apply the preferences, but the Supremacy Clause has always allowed Congress to require state courts (unlike state executives) to enforce valid federal law.
- ICWA's recordkeeping requirements also survive the Tenth Amendment. The Court confirmed a principle it had suggested in its 1997 Printz decision: Congress may assign 'ancillary' tasks to state courts related to their adjudicative duties. Early Congresses routinely required state courts to process naturalization applications, record documents, and transmit information to federal officials — establishing that such requirements have always been constitutionally permissible.
- The equal protection and nondelegation claims were dismissed because no challenger could show that suing the federal parties would actually fix their injury — what courts call 'redressability.' Individual families sued federal officials, but state courts apply ICWA's preferences and weren't bound by the outcome of this federal suit. Texas had no equal protection rights against the federal government and couldn't trace its alleged costs to the placement preferences specifically.
Doctrinal impact
Cases affected by this decision
Reaffirms Printz v. United States (521 U.S. 898)
The Court confirmed what Printz suggested: Congress may impose ancillary recordkeeping duties on state courts without violating the Tenth Amendment.
Reaffirms Adoptive Couple v. Baby Girl (570 U.S. 637)
The Court relied on this ruling to hold that ICWA does not require state agencies to search for preferred placements — the burden falls on the tribe to produce one.