Haaland v. Brackeen

• Docket Number: 21-376,21-377,21-378,21-380
• Decision Date: 15 June 2023
• Citation: Haaland v. Brackeen, 143 S.Ct. 1609, 216 L.Ed.2d 254 (2023)
• Parties: Deb HAALAND, Secretary of the Interior, et al., Petitioners v. Chad Everet BRACKEEN, et al. Cherokee Nation, et al., Petitioners v. Chad Everet Brackeen, et al. Texas, Petitioner v. Deb Haaland, Secretary of the Interior, et al. Chad Everet Brackeen, et al., Petitioners v. Deb Haaland, Secretary of the Interior, et al.
• Court: U.S. Supreme Court

143 S.Ct. 1609

216 L.Ed.2d 254

Deb HAALAND, Secretary of the Interior, et al., Petitioners v. Chad Everet BRACKEEN, et al.

Cherokee Nation, et al., Petitioners v. Chad Everet Brackeen, et al.

Texas, Petitioner v. Deb Haaland, Secretary of the Interior, et al.

Chad Everet Brackeen, et al., Petitioners v. Deb Haaland, Secretary of the Interior, et al.

No. 21-376

No. 21-377

No. 21-378

No. 21-380

Supreme Court of the United States

Argued November 9, 2022

Decided June 15, 2023

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Matthew D. McGill, Washington, D.C., for Chad Everet Brackeen, et al.

Solicitor General Judd E. Stone, II for Texas, by Mr. Deputy Solicitor General Edwin S. Kneedler, for the federal parties.

Ian H. Gershengorn, Washington, DC, for the tribal parties.

Elizabeth B. Prelogar, Solicitor General, Counsel of Record, Todd Kim, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Frederick Liu, Christopher G. Michel, Assistants to the Solicitor General, Samuel C. Alexander, Amber Blaha, Rachel Heron, Attorneys, Department of Justice, Washington, D.C., Robert T. Anderson, Solicitor, Department of the Interior, Washington, D.C., Samuel R. Bagenstos, General Counsel, Department of Health and Human Services, Washington, D.C., for Federal Parties.

Ashley E. Johnson, Todd W. Shaw, Gibson, Dunn & Crutcher LLP, 2001 Ross Avenue, Dallas, TX, Mark D. Fiddler, Fiddler Osband, LLC, 5200 Willson Rd., Ste. 150, Edina, MN, Matthew D. McGill, Counsel of Record, Lochlan F. Shelfer, David W. Casazza, Aaron Smith, Robert A. Batista, Gibson, Dunn & Crutcher LLP, 1050 Connecticut Avenue, N.W., Washington, D.C., Counsel for Individual Petitioners, Additional Captions Listed on Inside Cover.

Ken Paxton, Attorney General of Texas, Brent Webster, First Assistant Attorney General, Judd E. Stone II, Solicitor General, Counsel of Record, Lanora C. Pettit, Principal Deputy Solicitor General, Kathryn M. Cherry, Beth Klusmann, Assistant Solicitors General, Office of the Attorney General, P.O. Box 12548 (MC 059), Austin, Texas, for Petitioner.

Kathryn E. Fort, Michigan State Univ., College of Law, Indian Law Clinic, 648 N. Shaw Lane, East Lansing, MI, Ian Heath Gershengorn, Counsel of Record, Keith M. Harper, Matthew S. Hellman, Zachary C. Schauf, Leonard R. Powell, Victoria Hall-Palerm, Kevin J. Kennedy, Jenner & Block LLP, 1099 New York Ave., NW, Suite 900, Washington, DC, Counsel for Cherokee Nation, Oneida Nation, and Morongo Band of Mission Indians Additional Counsel on Inside Cover.

David A. Strauss, Sarah M. Konsky, Jenner & Block, Supreme Court and, Appellate Clinic At, the University of, Chicago Law School, 1111 E. 60th St., Chicago, IL, Counsel for Cherokee Nation, Oneida Nation, and Morongo Band of Mission Indians.

Adam H. Charnes, Kilpatrick Townsend & Stockton LLP, 2001 Ross Ave., Suite 4400, Dallas, TX, Rob Roy Smith, Kilpatrick Townsend & Stockton LLP, 1420 Fifth Ave., Suite 3700, Seattle, WA, Counsel for Quinault Indian Nation.

Jeffrey L. Fisher, Stanford Law School, Supreme Court, Litigation Clinic, 559 Nathan Abbott Way, Stanford, CA, Ephraim A. McDowell, O'Melveny & Myers LLP, 1625 Eye Street NW, Washington, DC, Doreen N. McPaul, Attorney General, Paul Spruhan, Assistant Attorney, General, Louis Mallette, Colleen Silversmith, Sage Metoxen, Aidan Graybill, Navajo Nation, Department of Justice, Post Office Box 2010, Window Rock, AZ, Counsel for Navajo Nation.

Justice Barrett delivered the opinion of the Court.

This case is about children who are among the most vulnerable: those in the child welfare system. In the usual course, state courts apply state law when placing children in foster or adoptive homes. But when the child is an Indian, a federal statute—the Indian Child Welfare Act—governs. Among other things, this law requires a state court to place an Indian child with an Indian caretaker, if one is available. That is so even if the child is already living with a non-Indian family and the state court thinks it in the child's best interest to stay there.

Before us, a birth mother, foster and adoptive parents, and the State of Texas challenge the Act on multiple constitutional grounds. They argue that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race. The United States, joined by several Indian Tribes, defends the law. The issuesare complicated—so for the details, read on. But the bottom line is that we reject all of petitioners' challenges to the statute, some on the merits and others for lack of standing.

I

A

In 1978, Congress enacted the Indian Child Welfare Act (ICWA) out of concern that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies." 92 Stat. 3069, 25 U.S.C. § 1901(4). Congress found that many of these children were being "placed in non-Indian foster and adoptive homes and institutions," and that the States had contributed to the problem by "fail[ing] to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." §§ 1901(4), (5). This harmed not only Indian parents and children, but also Indian tribes. As Congress put it, "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." § 1901(3). Testifying before Congress, the Tribal Chief of the Mississippi Band of Choctaw Indians was blunter: "Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People." Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess., 193 (1978).

The Act thus aims to keep Indian children connected to Indian families. "Indian child" is defined broadly to include not only a child who is "a member of an Indian tribe," but also one who is "eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." § 1903(4). If the Indian child lives on a reservation, ICWA grants the tribal court exclusive jurisdiction over all child custody proceedings, including adoptions and foster care proceedings. § 1911(a). For other Indian children, state and tribal courts exercise concurrent jurisdiction, although the state court is sometimes required to transfer the case to tribal court. § 1911(b). When a state court adjudicates the proceeding, ICWA governs from start to finish. That is true regardless of whether the proceeding is "involuntary" (one to which the parents do not consent) or "voluntary" (one to which they do).

Involuntary proceedings are subject to especially stringent safeguards. See 25 C.F.R. § 23.104 (2022); 81 Fed. Reg. 38832-38836 (2016). Any party who initiates an "involuntary proceeding" in state court to place an Indian child in foster care or terminate parental rights must "notify the parent or Indian custodian and the Indian child's tribe." § 1912(a). The parent or custodian and tribe have the right to intervene in the proceedings; the right to request extra time to prepare for the proceedings; the right to "examine all reports or other documents filed with the court"; and, for indigent parents or custodians, the right to court-appointed counsel. §§ 1912(a), (b), (c). The party attempting to terminate parental rights or remove an Indian child from an unsafe environment must first "satisfy the court that active efforts have beenmade to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." § 1912(d). Even then, the court cannot order a foster care placement unless it finds "by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." § 1912(e). To terminate parental rights, the court must make the same finding "beyond a reasonable doubt." § 1912(f).

The Act applies to voluntary proceedings too. Relinquishing a child temporarily (to foster care) or permanently (to adoption) is a grave act, and a state court must ensure that a consenting parent or custodian knows and understands "the terms and consequences." § 1913(a). Notably, a biological parent who voluntarily gives up an Indian child cannot necessarily choose the child's foster or adoptive parents. The child's tribe has "a right to intervene at any point in [a] proceeding" to place a child in foster care or terminate parental rights, as well as a right to collaterally attack the state court's decree. §§ 1911(c), 1914. As a result, the tribe can sometimes enforce ICWA's placement preferences against the wishes of one or both biological parents, even after the child is living with a new family. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49-52, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).

ICWA's placement preferences, which apply to all custody proceedings involving Indian children, are hierarchical: State courts may only place the child with someone in a lower-ranked group when there is no available placement in a higher-ranked group. For adoption, "a preference shall be given" to placements with "(1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families." § 1915(a). For foster care, a preference is given to (1) "the Indian child's extended family"; (2) "a foster home licensed, approved, or specified by the Indian child's tribe"; (3) "an Indian foster home licensed or approved by an authorized non-Indian licensing authority"; and then (4) another institution "approved by an Indian...