Haaland v. Brackeen
The Supreme Court upheld the Indian Child Welfare Act, rejecting challenges that the law exceeded Congress's authority over Indian affairs or unconstitutionally forced state officials to carry out federal policy. On the most contested questions — whether the law's placement preferences discriminate by race or improperly hand power to tribes — the Court dismissed the cases without ruling, finding the challengers lacked the legal standing to bring those claims.
The decision keeps ICWA in force nationwide, preserving the framework enacted in 1978 to prevent the mass separation of Native American children from their families and tribes, while leaving the racial-discrimination question open for future cases.
“Article I gives Congress a series of enumerated powers, not a series of blank checks.”
The majority's reminder that Congress's broad authority over Indian affairs still has constitutional limits.
How it got here: A federal district court struck down ICWA; the en banc Fifth Circuit reversed most but not all of those rulings; both sides sought Supreme Court review, and the cases were consolidated.
The Case in Depth
What happened
A 1978 federal law called the Indian Child Welfare Act was passed after Congress found that state agencies and private parties were removing Native American children from their families at alarming rates and placing them with non-Indian families, threatening the survival of tribal communities. The law requires state courts handling custody cases for Native American children to follow federal placement preferences — favoring Indian relatives, then tribal members, then other Indian families — and sets higher legal bars before parental rights can be terminated. Several non-Indian couples who had been caring for Native American children, and the State of Texas, sued to have the law struck down as unconstitutional.
The question before the Court
Does a 1978 federal law requiring state courts to give preference to Native American families when placing Indian children in foster care or adoption violate the Constitution by exceeding Congress's powers, illegally pressing state governments into service, or discriminating by race?
The Court's answer
Partly — the Court rejected every constitutional challenge to ICWA that it actually decided on the merits. Congress's authority to legislate on Indian affairs draws from several constitutional sources, including the Indian Commerce Clause, and the challengers failed to show any of those sources fell short. ICWA's core requirements — including showing "active efforts" to keep an Indian family together before removing a child — do not illegally commandeer state governments because the requirements apply equally to private parties and state actors alike, and because Congress can require state courts to apply federal law under the Supremacy Clause. The recordkeeping duties ICWA imposes on state courts are permissible as tasks ancillary to the courts' own proceedings.
The Court did not rule on whether ICWA's placement preferences discriminate unconstitutionally by race, or whether letting tribes override those preferences improperly delegates legislative power. The non-Indian families had no standing to raise those claims because a ruling against federal officials — who were the defendants — would not actually fix the families' problem: state officials who apply ICWA's preferences were not parties to the suit and would not be bound by the federal court's opinion. Texas also lacked standing to raise equal-protection claims on behalf of its citizens against the federal government. Both questions remain open for future cases.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
State courts across the country must continue applying ICWA's placement preferences and heightened procedural protections when Native American children enter the foster-care or adoption system. Non-Indian families seeking to adopt or foster such children will still face the law's hierarchy favoring Indian placements. The unresolved equal-protection question — whether ICWA's preferences amount to racial discrimination — keeps open a potentially decisive future challenge.
What changes now
ICWA remains the governing federal law for Native American children in state foster-care and adoption proceedings nationwide. The Fifth Circuit's rulings that several ICWA provisions unconstitutionally commandeered state governments are reversed. The lower court's judgments on equal protection and nondelegation are vacated, and those cases are sent back with instructions to dismiss for lack of jurisdiction. The equal-protection question — whether ICWA's placement preferences amount to racial discrimination — is explicitly left open and will be decided in a future case brought by a plaintiff with standing, most likely in a state-court custody proceeding.
What this does not decide
The Court explicitly did not decide whether ICWA's placement preferences — which rank Indian families above non-Indian families regardless of a child's best interests — violate the Constitution's guarantee of equal protection by discriminating based on race. Justice Kavanaugh's concurrence calls that question "serious," and it awaits a properly framed future case.
Concurrences and dissents
Concurrence — Justice Gorsuch
Writes separately (joined by Sotomayor and Jackson as to Parts I and III) to supply historical context showing ICWA was a direct response to a long, government-sponsored campaign to erase tribal identity by forcibly removing Indian children — first through federal boarding schools, then through state-driven mass adoptions. Argues the Court's 'plenary power' doctrine misread the Constitution's original meaning but that today's decision moves back toward a proper grounding in the Indian Commerce Clause, which authorizes Congress to regulate how non-Indians interact with Indians. Expresses hope the Court will eventually fully restore the original constitutional bargain that preserved tribal sovereignty.
Concurrence — Justice Kavanaugh
Concurs in full but writes separately to emphasize that the Court today did not decide — and expressly left open — whether ICWA's placement preferences violate the Equal Protection Clause. Flags the issue as 'serious': under ICWA, a child may be denied a particular placement, and a prospective foster or adoptive parent may be denied the opportunity to care for a child, based on race. Expects that question will be decided when raised by a plaintiff with standing in a state-court foster-care or adoption proceeding.
Dissent — Justice Thomas
Argues that none of the Constitution's enumerated powers — the Indian Commerce Clause, Treaty Clause, or structural foreign-affairs principles — supports a law that governs child custody proceedings of U.S. citizens in state courts simply because the child is an Indian. The 'plenary power' doctrine used to justify broad federal authority over Indian affairs originated in the 1886 Kagama decision as a constitutional non sequitur with no textual basis, and extending it to ICWA would validate a truly unbounded federal police power. Would hold ICWA unconstitutional.
Dissent — Justice Alito
Focuses on the concrete harm to children in the cases at hand — children removed from loving placements, or blocked from permanent homes, because a tribe objected over the wishes of biological parents and state-court judges. Argues that child custody has been a 'virtually exclusive province of the States' since the founding, and that no Indian-affairs power, however broad, permits Congress to override that authority by substituting tribal preferences for the best-interests-of-the-child standard that states have developed over centuries. Would hold the challenged ICWA provisions unconstitutional.
How the Court got there
The legal reasoning, step by step
- The Court began with the question of whether Congress had the power to enact ICWA at all. Congress's authority over Indian affairs is broad, drawing on multiple constitutional sources — the Indian Commerce Clause (which covers not only trade but broader Indian affairs), the Treaty Clause, structural principles inherent in the Constitution, and the federal trust relationship with tribes. Because the challengers bore the burden of showing ICWA exceeded all of these sources and failed to engage the Court's existing precedents on their own terms, the Court declined to disturb the Fifth Circuit's conclusion that ICWA falls within Congress's Article I authority.
- On anticommandeering — the constitutional rule, established in Printz v. United States (1997), barring Congress from forcing state governments to administer federal programs — the Court required the challengers to show that ICWA's provisions specifically harness a state's legislative or executive power. Because the most-challenged requirement, the 'active efforts' provision (showing meaningful attempts to keep an Indian family together before removing a child), applies on its face to 'any party' — including private individuals and agencies, not just state actors — it does not exclusively commandeer state sovereign authority. Laws that apply evenhandedly to private and government actors alike do not typically violate the anticommandeering doctrine.
- For ICWA's placement preferences, the Court drew a distinction between state agencies and state courts. State agencies are not actually required to conduct an active search for preferred placements; a prior decision, Adoptive Couple v. Baby Girl (2013), had established that the burden falls on the tribe or other objecting party to produce a higher-ranked placement. State courts are required to apply the preferences, but Congress has always been permitted to require state courts — unlike state executives or legislators — to apply valid federal law, because the Supremacy Clause explicitly binds state judges.
- The Court resolved the recordkeeping challenge by confirming what it had suggested in Printz: Congress may impose recordkeeping and reporting duties on state courts as tasks 'ancillary' to the adjudicative proceedings those courts are already obligated to conduct. Early Congresses routinely required state courts to process naturalization applications, certify documents, and gather reports — historical practice that demonstrates these duties fall within what the Constitution permits.
- On the equal-protection and nondelegation challenges, the Court dismissed without reaching the merits because none of the challengers had legal standing. To have standing, a plaintiff must show that a favorable court ruling would likely fix the claimed injury. Here, the families sued only federal officials, but state officials — who were not defendants — are the ones who actually apply the placement preferences and carry out placements. A federal court judgment against federal parties could not bind those state officials, making it no more than an advisory legal opinion. Texas could not assert equal-protection claims on behalf of its own citizens against the federal government, and its claimed financial injuries were not traceable to the placement preferences the law challenged.
Doctrinal impact
Cases affected by this decision
Reaffirms Printz v. United States (521 U.S. 898)
Confirmed Printz's suggestion that Congress may require state courts to perform recordkeeping ancillary to their adjudicative duties.
Reaffirms Adoptive Couple v. Baby Girl (570 U.S. 637)
Reaffirmed that ICWA's placement preferences impose no duty on state agencies to search; the tribe bears the burden to present a higher-ranked placement.