Haaland v. Brackeen

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Haaland v. Brackeen
Cherokee Nation v. Brackeen
Texas v. Haaland
Brackeen v. Haaland
Argued November 9, 2022
Full case nameDeb Haaland, Secretary of the Interior, et al. v. Chad Everet Brackeen, et al.
Cherokee Nation, et al. v. Chad Everet Brackeen, et al.
Texas v. Deb Haaland, Secretary of the Interior, et al.
Chad Everet Brackeen, et al. v. Deb Haaland, Secretary of the Interior, et al.
Docket nos.21-376
ArgumentOral argument
Case history
PriorBrackeen et al v. Zinke et al, 388 F. Supp. 3d 514 (N.D. Tex. 2018); Brackeen et al v. Bernhardt et al, 937 F.3d 406 (5th Cir. 2019); Brackeen et al v. Haaland et al, 994 F.3d 249 (5th Cir. 2021) (en banc)
Questions presented
Whether various provisions of the Indian Child Welfare Act violate the anticommandeering doctrine of the Tenth Amendment, the nondelegation doctrine, Congress's limited authority under the Indian Commerce Clause, or the equal protection component of the Fifth Amendment, and whether the petitioners have standing.
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Samuel Alito
Sonia Sotomayor · Elena Kagan
Neil Gorsuch · Brett Kavanaugh
Amy Coney Barrett · Ketanji Brown Jackson
Laws applied

Haaland v. Brackeen is a pending Supreme Court of the United States case brought by the states of Texas, Louisiana, and Indiana, and individual plaintiffs, that seeks to declare the Indian Child Welfare Act (ICWA) unconstitutional. In addition to Haaland v. Brackeen (docket no. 21-376), three additional cases have been consolidated to be heard at the same time. Those cases are Cherokee Nation v. Brackeen, Texas v. Haaland, and Brackeen v. Haaland.

The matter originally came up in a Texas District Court on an adoption petition filed by Chad and Jennifer Brackeen. After their effort was challenged by the Navajo Tribe, the Brackeens brought suit in the U.S. District Court in Fort Worth. The Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians intervened in the case. The U.S. District Court declared that the ICWA was unconstitutional and the case was appealed.

The Fifth Circuit Court of Appeals reversed the District Court in a panel opinion. The full court, on rehearing the case en banc, held that parts of the law, that set federal standards for lower and state courts, were constitutional; but that the parts of the law that required state agencies to perform certain acts were unconstitutional as a violation of the Tenth Amendment.

The Supreme Court heard the case on November 9, 2022, and a decision is expected in spring 2023.


Indian Child Welfare Act[edit]

photograph of three American Indian children dressed in suits, with an inset photo in their native attire
Display on Indian assimilation at the Old Courthouse in St. Louis

In 1978, the Congress enacted a law to protect American Indian children from removal from their tribes to be adopted by non-Indians.[1] As many as 35 percent of Indian children were being removed from their homes, mainly from intact families, and being placed in non-Indian homes.[2] This was often not in the best interest of the child, but for racial reasons, with "programs that took Native American children from their homes and placed them into boarding schools as part of a targeted process of assimilation."[3]

Congress established the following order of priorities for placing an Indian child who had to be removed from a home. First, the child should be placed with a member of the child's extended family, other members of the child's tribe, or other Indian families. Second, the child could be placed in a foster home approved by the child's tribe, or third, in a foster home approved by the state or other non-Indian authority. Finally, they could be placed in an institution operated or approved by an Indian tribe.[4]

Brackeen adoption attempt[edit]

In June 2016, a 10-month-old Navajo boy was placed with Chad and Jennifer Brackeen, a former civil engineer and an anesthesiologist, respectively, after his Navajo mother (who lived in Texas) was found to be using drugs.[5] The father of the child is Cherokee. In 2017 a Texas state court terminated the parental rights of both the biological parents.[fn 1][7] Under the provisions of the ICWA, the Navajo Nation stepped in and sought to place the child with a Navajo family, but that failed and the Brackeens were allowed to adopt the child.[8] The Brackeens later attempted to adopt the boy's sister in state court, but the girl's extended family also sought to take in the girl.[9] The Brackeens then filed suit in federal court to overturn the ICWA on the grounds of racial discrimination.[10] This approach would "completely erase [...] tribal sovereignty" according to Lauren van Schilfgaarde, a tribal sovereignty advocate.[fn 2][12]

State trial court[edit]

The adoption petition for the sister by the Brackeens was heard in state District Court by Judge Alex Kim, who stated that ICWA violated the Texas Constitution.[13] In state court, the Brackeens argued that they had more money than the child's Navajo relations, and would therefore be better for the child.[14] Following the presentation of evidence, the state's attorney stated that according to state guidelines, the child should be placed with her Navajo family.[15] Judge Kim disagreed and placed the child with the Brackeen family, but allowed limited visitation with her Navajo family.[16] Both sides were unhappy with portions of the decision and appealed, settlement was subsequently reached and the state appeal was dismissed.[17]

U.S. District Court[edit]

photograph of the federal courthouse in Fort Worth
Federal courthouse in Fort Worth

The Brackeens' federal lawsuit was filed in the federal District Court in Fort Worth in October 2017, and assigned to Judge Reed O'Connor.[18] The Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians intervened in the case.[19]


The states of Texas, Louisiana, and Indiana were the state plaintiffs, while the non-Indians Brackeens, Librettis, Cliffords, and Ms. Hernandez were individual plaintiffs.[20] The Librettis (Nick and Heather) had sought to adopt a Tigua Pueblo child, with the approval of the child's mother, Altagracia Hernandez.[fn 3][22] The Tigua Pueblo tribe intervened in the Nevada state court proceedings, but agreed not to contest the adoption in late 2018.[23] The Cliffords (Jason and Danielle) had attempted to adopt a child whose grandmother was a member of the White Earth Band of the Ojibwe Tribe in Minnesota. In the Clifford case, the child was placed with the maternal grandmother in accordance with ICWA by the Minnesota court that heard their case.[24]


The federal defendants included the Department of the Interior and Secretary Ryan Zinke, the Bureau of Indian Affairs and Director Bryan C. Rice, and the Department of Health and Human Services and Secretary Alex Azar.[fn 4][26]

Summary judgment[edit]

In 2018, Judge O'Connor issued an order finding that:

1) ICWA's mandatory placement preferences violated equal protection; 2) provision of ICWA granting Indian tribes authority to reorder congressionally enacted adoption placement preferences violated non-delegation doctrine; 3) ICWA provision requiring states to apply federal standards to state-created claims commandeered the states in violation of the Tenth Amendment; 4) Bureau of Indian Affairs (BIA) exceeded its statutory authority in promulgating regulations, in violation of the Administrative Procedure Act (APA); 5) BIA regulations were not entitled to Chevron deference; and 6) prospective and adoptive parents whose adoptions were open to collateral attack under ICWA had no fundamental right to care, custody, and control of children in their care.[27]

It was the first time a constitutional challenge to the ICWA had been successful.[28]

Court of Appeals[edit]

photograph of the New Orleans courthouse for the Fifth Circuit Court of Appeals
The Fifth Circuit Court of Appeals courthouse in New Orleans

Procedural background[edit]

After the District Court found that the ICWA and the applicable federal regulations "violated equal protection, the Tenth Amendment, and the nondelegation doctrine",[29] all sides appealed the case to the United States Court of Appeals for the Fifth Circuit. The case was assigned to a panel consisting of Senior Judge Jacques L. Wiener Jr., Judge James L. Dennis, and Chief Judge Priscilla Owen and argued on March 13, 2019.

Panel opinion[edit]

Judge Dennis delivered the opinion of the Court on August 9, 2019, which was modified on August 16, 2019.[30] The opinion reversed the decision of the District Court, and rendered judgment for the federal government and the Indian tribes.[31] Dennis ruled that although the Brackeens and other plaintiffs had standing to sue,[32] the District Court erred by considering this to be a race-based law.[33] Instead, it was a law based on political considerations, citing a United States Supreme Court case, United States v. Antelope which had held "that federal legislation with respect to Indian tribes ... is not based upon impermissible racial classifications.[34]

The panel also looked at whether ICWA required that state courts and state officials were "commandeered" to enforce federal law and concluded, two to one, that it had not. This was based on the Supremacy Clause, and the panel concluded that ICWA did not commandeer the agencies, but merely regulated the adoption and placement of Indian children.[35] Chief Judge Owen dissented from this part of the opinion.[36]

En banc opinion[edit]

On November 7, 2019, the Fifth Circuit, at the request of one of the judges, ordered that the case be heard en banc.[fn 5][39] Once ordered, 486 Indian tribes, 59 American Indian organizations, and 26 states filed amicus briefs in support of the constitutionality of the ICWA.[40] On January 22, 2020, the Court heard oral arguments.[41] On April 6, 2021, the court issued a per curiam opinion that summarized the primary opinions of Judge Dennis or Judge Kyle Duncan.[42] The court unanimously ruled that at least one party had standing to bring the suit,[43] and a majority held that Congress had the authority to enact the ICWA.[44]

The per curiam opinion also held that the "Indian child" classification did not violate equal protection.[45] It did however, in a non-precedental holding, determine that the adoptive placement and preference for an "Indian foster home" did violate equal protection.[fn 6][47] The court held "that ICWA's "active efforts," § 1912(d), expert witness, § 1912(e) and (f), and recordkeeping requirements, § 1915(e), unconstitutionally commandeer state actors",[48] violating the Tenth Amendment, and affirming the District Court. However, it also held "that the following provisions validly preempt contrary state law to the extent they apply to state courts (as opposed to state agencies): the placement preferences, § 1915(a) and (b), and the placement and termination standards, § 1912(e) and (f)", reversing the lower court.[49]

The published opinions by Dennis and Duncan, together with the concurrences and dissents by other judges were over 200 pages.[50]

Supreme Court[edit]

Petition for writ of certiorari[edit]

Following the en banc decision of the Fifth Circuit Court, the United States, the State of Texas, the Cherokee Nation, and the Brackeens all petitioned the Supreme Court for a writ of certiorari. On February 28, 2022, the Court granted all four petitions.[fn 7][51] The Supreme Court consolidated the other three cases into Deb Haaland, Secretary of the Interior, et al. v. Chad Everet Brackeen, et al., allotting one hour for oral argument. All four cases dealt with the same basic subject matter, but from the perspective of each individual appellant, and it is a more efficient use of the Court's time to hear them at the same time.

Oral argument[edit]

The case was argued on November 9, 2022. The Court had originally planned on one hour of oral argument, but argument took over three hours.[52]

The argument of the adoptive parents[edit]

The Brackeens and the other two non-Native American couples were represented pro bono by Matthew McGill of Gibson Dunn.[53] The first argument presented was that ICWA did away with the "best interest of the child" test used by most states.[54] McGill argued that ICWA violated the equal protection clause by treating Native American children differently, and argued that Congress did not have the authority under the Constitution to regulate Native Americans throughout the United States.[55] McGill argued that the plenary power doctrine in American Indian case law was not based nor authorized under the Indian Commerce Clause of the Constitution.[56] On questioning by Justice Amy Coney Barrett, McGill stated that Congress's "plenary power applies to the tribe's areas of its sovereign interests, tribal lands, treaty powers, its internal affairs, its ability to self-govern."[57] Justice Sonia Sotomayor immediately questioned that position, pointing out a list of laws governing Indians since the late 1700s.[58]

The argument of the federal government[edit]

The United States, represented by Deputy Solicitor General Edwin Kneedler argued that the Congress did have the right to regulate the tribes, so long as the law was "rationally related" to the governments obligations to the tribes.[59]

The argument of the States[edit]

The position of the States was presented by Texas Solicitor General Judd E. Stone. Stone argued that ICWA violated the Tenth Amendment anti-commandeering provisions.[60]

The argument of the tribes[edit]

Ian H. Gershengorn argued the position of the American Indian tribes to the Court.

Subsequent developments[edit]

Following the lower court decisions, New Mexico passed a law to codify various provisions of the ICWA into state law.[61]


  1. ^ Both the biological parents and the paternal grandmother supported the adoption by the Brackeens, but were opposed by the tribe.[6]
  2. ^ Lauren van Schilfgaarde (Cochiti Pueblo), is the director of the San Manuel Band of Mission Indians Tribal Legal Development Clinic at UCLA Law School.[11]
  3. ^ The mother was not an American Indian, but the father was eligible for membership in the Tigua Pueblo tribe, although he was not a member when the child was born.[21]
  4. ^ As the Secretary of the Interior and other officials changed, the style of the case changed to reflect the current office holder.[25]
  5. ^ Instead of one of the parties requesting rehearing, any member of the court may request that the entire court rehear the appeal, and if a majority of the judges agree, the court will order a rehearing by the entire court.[37] One source indicates that the plaintiffs requested an en banc hearing.[38]
  6. ^ A "non-precedental" ruling is not binding on future decisions in that circuit. 25 U.S.C. §§ 1915(a)(3), 1915(b)(iii) were affirmed on a court that was evenly divided.[46]
  7. ^ The other three cases were styled as Cherokee Nation, et al. v. Chad Everet Brackeen, et al.; The State of Texas v. Deb Haaland, Secretary of the Interior, et al.; and Chad Everet Brackeen, et al. v. Deb Haaland, Secretary of the Interior, et al.


  1. ^ Jessie Shaw, Commandeering the Indian Child Welfare Act: Native American Rights Exception to Tenth Amendment Challenges, 42 Cardozo L. Rev. 2007, 2007-08 (2021); Lucy Dempsey, Equity over Equality: Equal Protection and the Indian Child Welfare Act, 77 Wash. & Lee L. Rev. Online 411, 413 (2021); Bradley E. Tinker, Brackeen v. Zinke, 0 Pub. Land & Resources L. Rev. 1, Art. 14 (online only) (2018).
  2. ^ B.J. Jones, The Indian Child Welfare Act Handbook 2 (1995); Troy R. Johnson, The State and the American Indian: Who Gets the Indian Child, 14 Wícažo Ša Rev. 197 (1999); Shaw, 42 Cardozo L. Rev. at 2010; Dempsey, 77 Wash. & Lee L. Rev. Online at 417.
  3. ^ Shaw, 42 Cardozo L. Rev. at 2010.
  4. ^ Dempsey, 77 Wash. & Lee L. Rev. Online at 424, fn64 & fn65; Johnson, 14 Wícažo Ša Rev. at 209.
  5. ^ Shaw, 42 Cardozo L. Rev. at 2014; Onalee R. Chappeau, Trusting the Tribe: Understanding the Tensions of the Indian Child Welfare Act, 64 St. Louis U.L.J. 241, 265–66 (2020); Jan Hoffman, Custody Fight Pits Texas Couple Against a Law Favoring Tribes, N.Y. Times, June 5, 2019, at A1 (hereinafter Hoffman, Custody Fight); Arnessa Garrett, NYT spotlights white Fort Worth couple's fight to adopt Native American child, Dallas Morning News, June 5, 2019, online (hereinafter Garrett, Spotlights); Roxanna Asgarian, How a white evangelical family could dismantle adoption protections for Native children, Vox (Feb. 20, 2020, 7:30 A.M) (hereinafter Asgarian, Protections).
  6. ^ Chappeau, 64 St. Louis U.L.J. at 266.
  7. ^ Chappeau, 64 St. Louis U.L.J. at 266.
  8. ^ Chappeau, 64 St. Louis U.L.J. at 266; Hoffman, Custody Fight; Garrett, Spotlights; Asgarian, Protections; Nora Mabie, US Supreme Court to hear Brackeen v. Haaland, a case challenging Indian Child Welfare Act, Grand Rapid Tribune (Feb. 28, 2022, 2:02 p.m.) (last accessed Mar. 20, 2022) (hereinafter Mabie, Supreme Court); Roxanna Asgarian, Texas case could change adoption rules for Native American children, and undercut tribal rights, The Texas Tribune (Nov. 10, 2022) (hereinafter Asgarian, Texas case).
  9. ^ Shaw, 42 Cardozo L. Rev. at 2014; Hoffman, Custody Fight.
  10. ^ Shaw, 42 Cardozo L. Rev. at 2015; Hoffman, Custody Fight; Asgarian, Protections.
  11. ^ Ella Creamer, The fight over American Indian children, Politico (May 31, 2022, 3:31 P.M) (hereinafter Creamer, Fight).
  12. ^ Creamer, Fight.
  13. ^ Hoffman, Custody Fight.
  14. ^ Hoffman, Custody Fight.
  15. ^ Hoffman, Custody Fight.
  16. ^ Hoffman, Custody Fight; Garrett, Spotlights.
  17. ^ In the Interest of A.M., a Child, Nos. 02-17-00298 and 02-17-00300 (Tex. App.—Fort Worth, Dec. 7, 2017, no pet.) (not designated for publication).
  18. ^ Hoffman, Custody Fight; Asgarian, Protections.
  19. ^ Brackeen v. Zinke, 338 F. Supp. 3d 514, 520 (N.D. Tex. 2018) (hereinafter cited as Brackeen I); National Indian Law Library, 2018 Federal Courts Cases, Native Am. Rts. Fund (accessed on Apr. 10, 2021) (hereinafter cited as NARF, 2018 Federal Court Cases); Mabie, Supreme Court.
  20. ^ Tinker, 0 Pub. Land & Resources L. Rev. at 2.
  21. ^ Chappeau, 64 St. Louis U.L.J. at 267.
  22. ^ Chappeau, 64 St. Louis U.L.J. at 267.
  23. ^ Chappeau, 64 St. Louis U.L.J. at 267.
  24. ^ Chappeau, 64 St. Louis U.L.J. at 267–68.
  25. ^ Fed. R. App. P., Rule 43(c)(2).
  26. ^ Chappeau, 64 St. Louis U.L.J. at fn 180, 265.
  27. ^ NARF, 2018 Federal Court Cases.
  28. ^ Shaw, 42 Cardozo L. Rev. at 2008; Dempsey, 77 Wash. & Lee L. Rev. Online at 414.
  29. ^ Brackeen v. Bernhardt, 937 F.3d 406, 420 (5th Cir. 2019) (hereinafter cited as Brackeen II).
  30. ^ Brackeen II, 936 F.3d at 406.
  31. ^ Brackeen II, 936 F.3d at 413; Dempsey, 77 Wash. & Lee L. Rev. Online at 414; Erin Dougherty Lynch and Dan Lewerenz, Brackeen v. Bernhardt - Indian Child Welfare Act, Native Am. Rts. Fund (last visited Mar. 12, 2022) (hereinafter cited as Lynch, Brackeen).
  32. ^ Brackeen II, 936 F.3d at 424.
  33. ^ Brackeen II, 936 F.3d at 426.
  34. ^ Brackeen II, 936 F.3d at 426, internal citation omitted.
  35. ^ Brackeen II, 936 F.3d at 432-33.
  36. ^ Brackeen II, 936 F.3d at 441 (CJ Owen, dissenting); Shaw, 42 Cardozo L. Rev. at 2008.
  37. ^ Fed. R. App. P. 35(a).
  38. ^ Shaw, 42 Cardozo L. Rev. at 2015.
  39. ^ Brackeen v. Bernhardt, 942 F.3d 287 (2019); Dempsey, 77 Wash. & Lee L. Rev. Online at 414; Lynch, Brackeen.
  40. ^ Shaw, 42 Cardozo L. Rev. at 2015; Mabie, Supreme Court.
  41. ^ Lynch, Brackeen.
  42. ^ Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021) (hereafter cited as Brackeen III).
  43. ^ Brackeen III, 994 F.3d at 267.
  44. ^ Brackeen III, 994 F.3d at 267-68; Adrianna Shannon, Indian Nations Law Update - April 2021, 105 Nat'l L. Rev. (Online) (last accessed Mar. 13, 2022); Debra Cassens Weiss, In 325-page opinion, en banc 5th Circuit splits on preference for tribes in Native American adoptions, ABA J. (Online), Apr. 8, 2021 (last accessed Mar. 13, 2022).
  45. ^ Brackeen III, 994 F.3d at 268; Dempsey, 77 Wash. & Lee L. Rev. Online at 414; Weiss, ABA J. (Online).
  46. ^ Brackeen III, 994 F.3d at 268.
  47. ^ Brackeen III, 994 F.3d at 268; Shannon, 105 Nat'l L. Rev. (Online); Weiss, ABA J. (Online).
  48. ^ Brackeen III, 994 F.3d at 268; Shaw, 42 Cardozo L. Rev. at 2015-16; Weiss, ABA J. (Online).
  49. ^ Brackeen III, 994 F.3d at 268; Shannon, 105 Nat'l L. Rev. (Online); Weiss, ABA J. (Online).
  50. ^ Brackeen III.
  51. ^ Mabie, Supreme Court.
  52. ^ Amy Howe, Closely divided court scrutinizes various provisions of Indian Child Welfare Act, SCOTUSBlog (Nov. 9, 2022) (last visited Nov. 10, 2022) (hereinafter cited as Howe, Divided court).
  53. ^ Howe, Divided court.
  54. ^ Transcript of Oral Argument at 4, Haaland v. Brackeen, (No. 21-376) (hereinafter Transcript of Oral Argument).
  55. ^ Transcript of Oral Argument at 13-14; Howe, Divided court.
  56. ^ Transcript of Oral Argument at 14-16.
  57. ^ Transcript of Oral Argument at 14.
  58. ^ Transcript of Oral Argument at 14-15.
  59. ^ Howe, Divided court.
  60. ^ Howe, Divided court.
  61. ^ New Mexico governor signs historic legislation providing protection for Native American children and families, Indian Country Today (Online) Mar. 4, 2022 (last accessed Mar. 13, 2022).