Federal Court Updates Haaland v. Brackeen (June 15, 2023)— The case dates back to 2017, when Texas joined the Brackeen family (petitioners) in suing the United States, claiming that ICWA: (1) exceeded Congress’ power to enact laws relating to Indian affairs; (2) violated the Tenth Amendment’s anti-commandeering doctrine; and (3) violated the Constitution’s equal protection clause. In 2018, the U.S. District Court in Texas sided with the petitioners, holding that ICWA unlawfully discriminated against non-Natives. The U.S. Court of Appeals for the Fifth Circuit Court reviewed the District Court’s decision, reversing in part and upholding in part, causing both sides to seek Supreme Court review. The Supreme Court granted review and heard oral arguments in November 2022. Justice Amy Coney Barrett wrote the majority opinion and was joined by Chief Justice Roberts, and Justices Gorsuch, Sotomayor, Kagen, Kavanaugh, and Jackson in the 7-2 majority decision. Justice Gorsuch wrote a separate concurring opinion that was joined by Justices Sotomayor and Jackson. Justices Thomas and Alito filed separate dissenting opinions. The petitioners first claimed that ICWA exceeds Congress's Article I power to enact laws relating to Tribes and tribal citizens. Petitioners first claimed that while the Indian Commerce Clause may afford Congress the ability to enact laws relating to Tribal Governments, it had no power to enact laws like ICWA - which they claim relates only to individual Indians. The majority rejected this claim, stating that "we held more than a century ago that 'commerce with the Indian tribes, means commerce with the individuals composing those tribes.’ So that argument is a dead end." Petitioners also claimed that ICWA goes beyond Congress’ power to regulate commerce with Indian Tribes, claiming that “children are not commodities”. The majority acknowledged that “[r]hetorically, it is a powerful point—of course children are not commercial products. Legally, though, it is beside the point. As we already explained, our precedent states that Congress’s power under the Indian Commerce Clause encompasses not only trade but also 'Indian affairs.’” The majority went on to analyze a long list of cases relating to Congress' plenary authority over Indian affairs. In holding that ICWA is clearly within Congress’ constitutional authority, the Court reasoned that " Congress’s power to legislate with respect to Indians is well established and broad .” In the final argument relating to Congress’ Indian affairs authority petitioners argue that federal power stops where state power over the family begins. Justice Barrett held that "Petitioners are trying to turn a general observation (that Congress's powers rarely touch state family law) into a constitutional carveout. That argument is a non-starter. As James Madison said to Members of the First Congress, when the Constitution conferred a power on Congress, 'they might exercise it, although it should interfere with the laws, or even the Constitution of the States.' Family law is no exception." Petitioners also claimed that several provisions of ICWA violate the Tenth Amendment’s anti- commandeering doctrine, which bars Congress from "commanding the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." The majority rejected all three categories of petitioners’ Tenth Amendment arguments, holding that "When a federal statute applies on its face to both private and state actors, a commandeering argument is a heavy lift—and petitioners have not pulled it off. Both state and private actors initiate involuntary proceedings. And, if there is a core of involuntary proceedings committed exclusively to the sovereign, Texas neither identifies its contours nor explains what §1912(d) [of ICWA] requires of a State in that context. Petitioners have therefore failed to show that [this provision of ICWA] commands the States to deploy their executive or legislative power to implement federal Indian policy.” Regarding ICWA’s placement preference for Indian children, the Court noted that ICWA places "the burden on the tribe or other objecting party to produce a higher-ranked placement. So, as it stands, petitioners assert an anti-commandeering challenge to a provision that does not command state agencies to do anything.” The Court conceded that “[s]tate courts are a different matter. ICWA indisputably requires them to apply the placement preferences in making custody determinations.” Despite this concession, the Court ruled
12
Made with FlippingBook - Online catalogs