By: Sophie Staires

On November 9, 2022, the Supreme Court heard oral arguments for Brackeen v. Haaland, which challenges the constitutionality of the Indian Child Welfare Act (ICWA). Brackeen was initially brought by a non-Indian couple seeking to adopt a Navajo child, but the consolidated case now includes the state of Texas and multiple tribes. Under ICWA, adoption preferences for Indian children must be given first to family members, second to members of the child’s tribe, and third to members of any tribe- before giving preference to a non-Indian family.[1] Before getting into the challenges brought against ICWA, it’s important to understand the context from which ICWA arose.

Congress passed ICWA in 1978 after finding 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 and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”[2] In fact, roughly one third of Indian children had been removed from their homes, and of those, about 85% had been placed with non-Indian families. These alarming statistics are by no means accidental- rather they were part of a concerted effort on the part of the federal government aimed at eradicating the tribes. In recognition of this, Congress passed ICWA to “promote the stability and security of Indian tribes and families.”[3]

The Supreme Court granted cert to address two main challenges to the constitutionality of ICWA: Congressional authority and Equal Protection. The first claim is that Congress lacks the authority to enact such legislation in the first place. Congress found authority for ICWA in the Indian Commerce Clause, and the federal trust responsibility, both of which have long been understood to give Congress plenary power over Indian affairs.[4] Brackeen argues that children are not items of commerce, and therefore Congress is exceeding its authority. The federal government and the tribes rebut this by citing the fact that “commerce” has been much more broadly defined through case law, and that Congress’s plenary power covers a broad swath of areas.[5]

The idea of plenary power is one the Justices struggled with consistently throughout oral arguments. They raised hypothetical after hypothetical, trying to get a determine the exact scope of this power. Justice Alito in particular voiced concern over a limitless Congressional authority, while other Justices were reluctant to impose restrictions where no limit had been clearly defined. However, expecting a definitive answer from either party was optimistic to the point of absurdity- as the Court itself has often shied away from defining the exact scope of this authority.

Just as ambiguously defined as plenary power is the “trust relationship” between the federal government and tribal nations. While the existence of a trust relationship has consistently been upheld, the exact meaning of what it entails has varied greatly over time. While Congress acted with the purpose of supporting tribal sovereignty and self-governance, there was some debate about to what extent ICWA is rationally related to such a purpose. Mr. McGill, representing the Brackeens, argues that allowing adoption of an Indian child by a non-Indian couple does nothing to affect the tribe’s ability to pass their own laws and be ruled by them. But, as opposing counsel contends, a tribe can hardly self-govern when the tribe itself has been effectively eradicated by a gradual process of removing tribal children to non-Indian homes.

The second challenge raised is under the Equal Protection Clause, claiming that the preferences in ICWA constitute an unconstitutional racial classification, treating Indian children differently than other children. However, “Indian” has long been considered a political, rather than racial designation.[6] As Justice Gorsuch (the court’s biggest advocate for Native sovereignty) points out, tribes are distinct sovereigns, and they determine their own membership. Redesignating this term as a solely racial classification would be a refusal to acknowledge tribes as politically distinct sovereign nations- and may call into question other federal programs and protections, for example regarding healthcare, taxation, or gaming regulations.

Another concern raised by Brackeen, and heavily emphasized by the Court, is the weight given to a “best interest of the child” test. In other words, the concern is that preference for an Indian adoptive parent is outweighing the best interest of the child. But as Mr. Kneedler, counsel for the federal government, rebuts, a consideration of the child’s best interest is inherent in ICWA. ICWA was enacted precisely because it is in the best interest of the child to be raised within their tribal community when possible, and because the state had done an inadequate job of representing the best interests of Indian children.

It seems safe to say that no one gave a stellar performance at these oral arguments, Justices included. Honorable mentions go to Justice Gorsuch, the only Justice who seems to have a solid understanding of the underlying precedent and principles, and to Mr. Gershengorn, representing the tribes, who spoke intelligently and confidently, and who alone seemed unflustered by the Justices questions.

The ICWA challengers have made an emotional appeal- framing the case around one nice, non-Indian couple who want to give a home to a little girl (who just happens to be Navajo), while the big, bad tribe is trying to nab the child and send her off to live with strangers. But these seemingly soft-hearted challengers know perfectly well that this is not a case about one family trying to stay together- it is about tribal sovereignty.[7] If ICWA is struck down on either issue it will call into question the entire basis of federal Indian law- the understanding that tribes are sovereign entities, and that Congress, through the trust relationship, has an obligation to protect the sovereignty and self-governance of tribal nations.

Sophie is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. She is primarily interested in issues affecting indigenous communities, including criminal justice, jurisdictional schemes, environmental issues, and economic development. Her personal interests include sipping wine, cooking, and backpacking with her husband and their dog.


[1] 25 U.S.C. §1915(a) (1978).

[2] 25 U.S.C. §1901(4).

[3] Id., §1902.

[4] U.S. Const. art. I, § 8, cl. 3.

[5] Specifically, Justice Sotomayor discusses the traditional meaning of commerce to include “trade and intercourse,” and “intercourse” can be very broadly understood as interactions between peoples, and Justice Kagan defines plenary power to mean “unqualified.”

[6] See generally Morton v. Mancari, 417 U.S. 535 (1974) (holding that BIA hiring preferences given to Indians were not unconstitutional because Indian was a political, rather than racial, classification).

[7] See Britanny Habbart’s post “Who’s Really Behind Brackeen v. Haaland” for more on the attorneys representing Brackeen and their interests in diminishing tribal sovereignty.