WASHINGTON D.C. – The United States Supreme Court has agreed to add Haaland v. Brackeen on the agenda for the next term beginning October 3, 2022 and ending October 3, 2023.
Haaland v. Brackeen is the consolidation of three cases: Cherokee Nation v. Brackeen, Texas v. Haaland and Brackeen v. Haaland, for the purpose of a single oral argument regarding the constitutionality of the Indian Child Welfare Act.
The states of Indiana, Louisiana and Texas including mother of Native child (baby O) Altagracia Socorro Hernandez and non-Native couples the Brackeens, Cliffords and Librettis are the plaintiffs in the case.
Baby O was ultimately adopted by the Librettis.
The Cherokee Nation, the Oneida Nation, the Quinault Indian Nation, and the Morongo Band of Mission Indians intervened as defendants in support of ICWA.
ICWA was enacted in 1978 intended to preserve Native American families by placing foster and orphan native children with other family members or tribal foster homes.
The three states along with the seven individuals filed a complaint in the U.S. Court for the Northern District of Texas challenging the constitutionality of several provisions of ICWA in March 2018.
According to the complaint, Article I, the anti-commandeering doctrine of the Tenth Amendment, and the equal protection component of the Fifth Amendment, substantive due process, and the non-delegation doctrine were violated.
The U.S. Secretary of the Interior and tribes filed motions for dismissal of the complaint for a lack of standing. In turn, the plaintiffs moved for a summary judgment.
The district court denied the motions to dismiss while affirming the plaintiffs’ standing and granting summary judgment for the claims made except the due process claims, ruling the ICWA provisions unconstitutional.
An appeal led the U.S. Court of Appeal for the Fifth Circuit to affirm the plaintiffs’ standing in the lower courts judgment holding that ICWA provisions violates the Tenth Amendment yet, reversing the grants of summary judgment.
The Navajo Nation joined the appealing tribes in support of ICWA.
“It allowed tribes ‘to establish an order of adoptive and foster preferences that is different from the order set forth’ by Congress elsewhere in the statute,” per brief summary of this case from Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black.
U.S. Secretary of the Interior Deb Haaland appealed to the U.S. Supreme Court on September 3, 2021, who agreed to hear the case, adding it to next terms docket on February 28, 2022.
There are three questions being presented to the high court:
- Whether various provisions of ICWA (particularly the standards, placement, and recordkeeping provisions) violate the tenth amendment.
- Whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for “other Indian families and Indian foster homes.”
- Whether Section 1915 (a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefor consistent with equal protection.
ICWA supporters claim that a ruling invalidating the law could have significant consequences and long-lasting effects for Native American children and tribal rights.
The date of the argument is still pending.
The decision of the Supreme Court will likely be made sometime in 2023, depending on the case.
