Haaland v. Brackeen

Facts

Congress enacted the Indian Child Welfare Act (ICWA) because “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.” The Act 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.” 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. For other Indian children, state and tribal courts exercise concurrent jurisdiction, although the state court is sometimes required to transfer the case to the tribal court. 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). 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.” 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. 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 been [**269] made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” 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.” To terminate parental rights, the court must make the same finding “beyond a reasonable doubt.” 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. 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. 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.” 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 tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.” For purposes of the placement preferences, an “Indian” is “any person who is a member of an Indian tribe,” and an “Indian organization” is “any group . . . owned or controlled by Indians.” Together, these definitions mean that Indians from any tribe (not just the tribe to which the child has a tie) outrank unrelated non-Indians for both adoption and foster care. For foster care, institutions run or approved by any tribe outrank placements with unrelated non-Indian families. Courts must adhere to the placement preferences absent “good cause” to depart from them. The child’s tribe may pass a resolution altering the prioritization order. If it does, “the agency or court affecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child.” So long as the “least restrictive setting” condition is met, the preferences of the Indian child or her parent cannot trump those set by statute or tribal resolution. But, “[w]here appropriate, the preference of the Indian child or parent shall be considered” in making a placement. The State must record each placement, including a description of the efforts made to comply with ICWA’s order of preferences. Both the Secretary of the Interior and the child’s tribe have the right to request the record at any time. Ibid. State courts must also transmit all final adoption decrees and specified information about adoption proceedings to the Secretary.

A. L. M. was placed in foster care with the Brackeens when he was 10 months old. Because his biological mother is a member of the Navajo Nation and his biological father is a member of the Cherokee Nation, he falls within ICWA’s definition of an “Indian child.” The Brackeens and A. L. M.’s biological parents live in Texas. The Brackeens sought to adopt him. A. L. M.’s biological mother, father, and grandmother all supported the adoption. The Navajo and Cherokee Nations did not. ICWA’s placement preferences ranked a proposed Navajo family ahead of non-Indian families like The Brackeens. The Brackeens presented favorable testimony from A. L. M.’s court-appointed guardian and from a psychological expert who described the strong emotional bond between A. L. M. and his foster parents. A. L. M.’s biological parents and grandmother also testified, urging the court to allow A. L. M. to remain with The Brackeens, “‘the only parents [A. L. M.] knows.’” The court denied the adoption petition. The Brackeens obtained an emergency stay of the transfer and filed this lawsuit. The Navajo family then withdrew from consideration, and The Brackeens finalized their adoption of A. L. M. The Brackeens now seek to adopt A. L. M.’s biological sister, Y. R. J., again over the opposition of the Navajo Nation.

Altagracia Hernandez chose the Librettis as adoptive parents for her newborn daughter, Baby O. The Librettis took Baby O. home from the hospital when she was three days old, and Hernandez, who lived nearby, visited Baby O. frequently. Baby O.’s biological father visited only once but supported the adoption. Hernandez is not an Indian. Baby O.’s biological father is descended from members of the Ysleta del Sur Pueblo Tribe, and the Tribe enrolled Baby O. as a member. The adoption proceeding was governed by ICWA. The Tribe exercised its right to intervene and argued, over Hernandez’s objection, that Baby O. should be moved from the Librettis’ home in Nevada to the Tribe’s reservation in El Paso, Texas. It presented a number of potential placements on the reservation for Baby O., and state officials began to investigate them. After Hernandez and the Librettis joined this lawsuit, the Tribe withdrew its challenge to the adoption, and the Librettis finalized their adoption of Baby O. The Librettis stayed in the litigation because they planned to foster and possibly adopt Indian children in the future.

The Cliffords, who live in Minnesota, fostered Child P., whose maternal grandmother belongs to the White Earth Band of Ojibwe Tribe. When Child P. entered state custody around the age of three, her mother informed the court that ICWA did not apply because Child P. was not eligible for tribal membership. The Tribe wrote a letter to the court confirming the same. Child P. was placed with the Cliffords, who eventually sought to adopt her. The Tribe intervened in the proceedings and, with no explanation for its change in position, informed the court that Child P. was in fact eligible for tribal membership. The Tribe announced that it had enrolled Child P. as a member. To comply with ICWA, Minnesota placed Child P. with her maternal grandmother, who had lost her foster license due to a criminal conviction. The Cliffords continued to pursue the adoption, but, citing ICWA, the court denied their motion. 

Ps assert that Congress lacks authority to enact ICWA and that several of ICWA’s requirements violate the anticommandeering principle of the Tenth Amendment. They argued that ICWA employs racial classifications that unlawfully hinder non-Indian families from fostering or adopting Indian children. And they challenged §1915(c)-the provision that allows tribes to alter the prioritization order-on the ground that it violates the non-delegation doctrine. The District Court granted Ps’ motion for summary judgment on their constitutional claims, and a divided panel of the Fifth Circuit reversed. After rehearing the case en banc, the Fifth Circuit affirmed in part and reversed in part. The en banc court concluded that ICWA does not exceed Congress’s legislative power, that §1915(c) does not violate the nondelegation doctrine, and that some of ICWA’s placement preferences satisfy the guarantee of equal protection. The court was evenly divided as to whether ICWA’s other preferences-those prioritizing “other Indian families” and “Indian foster home[s]” over non-Indian families- unconstitutionally discriminate on the basis of race. The Fifth Circuit affirmed the District Court’s ruling that these preferences are unconstitutional. It held that §1912(d)’s “active efforts” requirement, §1912(e)’s and §1912(f)’s expert witness requirements, and §1915(e)’s recordkeeping requirement unconstitutionally commandeer the States. It divided evenly with respect to the other provisions that petitioners challenge here: §1912(a)’s notice requirement, §1915(a) and §1915(b)’s placement preferences, and §1951(a)’s recordkeeping requirement. Ibid. So the Fifth Circuit affirmed the District Court’s holding that these requirements, too, violate the Tenth Amendment.

The Supreme Court granted certiorari. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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