On Thursday, June 15, 2023, the Supreme Court issued its decision in Haaland v. Brackeen. The case was primarily concerned with the constitutionality of the Indian Child Welfare Act (ICWA), a federal law enacted in 1978 that governs state-level adoption and foster care cases involving Native American children. Among other provisions, the ICWA gives tribal governments jurisdiction over the adoption of Native American children who reside on a reservation or have certain tribal connections.
In a 7-2 decision, the Court affirmed the Fifth Circuit’s finding that the ICWA is constitutional, rejected petitioners’ Tenth Amendment argument, and found that petitioners lacked the standing required for other challenges made. Justice Barrett delivered the opinion for the Court; Justices Gorsuch and Kavanaugh filed concurring opinions; Justices Thomas and Alito filed dissenting opinions.
Please join us as Jennifer Weddle discusses the Court’s findings.
Jennifer Weddle, Principal Shareholder & Co-Chair, American Indian Law Practice Group, Greenberg Traurig, LLP
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Sam Fendler: Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I’m an Assistant Director of Practice Groups with The Federalist Society. Today, we’re excited to host a “Courthouse Steps Decision” webinar on Haaland v. Brackeen. Our guest today is Jennifer Weddle. Jennifer is principal shareholder and Co-Chair of the American Indian Law Practice Group at Greenberg Traurig. Based out of Denver, Jennifer’s practice focuses on tribal economic development and natural resources development. She is an experienced litigator and has handled cases in the U.S. Supreme Court, federal, state, and tribal jurisdictions.
If you’d like to learn more about Jennifer, her full bio can be viewed on our website, fedsoc.org. After Jennifer gives her opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we’ll do our best to answer as many questions as we can. Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speaker and not The Federalist Society. With that, Jennifer, thank you very much for joining us today, and the floor is yours.
Jennifer Weddle: Thank you, Sam, and thank you to The Federalist Society for having me. It is a wonderful honor to talk today about Haaland v. Brackeen. So starting out, reactions -- relief, gratitude, “free-floating” joy. That’s how Indian Country greeted the U.S. Supreme Court’s June 15, 2023, decision in Haaland v. Brackeen, really four consolidated cases that were on appeal from the Fifth Circuit. In Brackeen, as it is known, the Court rejected myriad challenges to the 1978 Indian Child Welfare Act brought by non-Native adoptive parents in the state of Texas. The result was a 7-2 victory for tribes that left ICWA, as it is known, intact.
Nearly 50 years after its enactment by Congress, the Indian Child Welfare Act was again under scrutiny before the Court, really its first revisiting of ICWA since its 2013 5-4 holding in a case called Adoptive Couple v. Baby Girl. That case drew national and social media attention, ripping away an Indian child from her Indian father after she had been with him for years, finding that ICWA’s preference for the Indian parent who had signed the relinquishment of parental rights while serving in the military was not triggered when he had not been a custodial parent at the time he signed the relinquishment. That overturned the Indian father’s victories in South Carolina courts and put the child back into the custody of white foster parents seeking to adopt her. But in that case and importantly, Justice Thomas authored a concurring opinion that had sharply questioned Congress’s authority to enact ICWA. And thereafter, repeated challenges to ICWA sprang up, including those that took up three full hours of oral argument before the Court on November 9, 2022.
I was there that day, and I’ll talk more about that experience, but in the years leading up to the Court -- to the oral argument, there had been a very broad and well-funded campaign against ICWA for a proceeding decade. Really, I think, shockingly for Indian law practitioners, this 1978 statute that had been widely regarded as the most important Indian-related statute ever enacted by Congress was suddenly being litigated right and left. ICWA’s been challenged only a small number of cases fewer than the Affordable Care Act in the last decade. It’s number two most litigated statute in federal law. But in its Brackeen ruling less than two weeks ago, the Court put the question of ICWA’s constitutionality firmly to bed.
But before turning to the discussion of the opinions, some additional context, I think, is also helpful. ICWA was passed by Congress at a time when one-third of Indian children were being removed from Indian homes. Ninety percent of those children were placed with non-Indian institutions and families. Those really shocking numbers, one in three Indian children being removed, those really shocking numbers flowed from ignorance and contempt directed at Indian families by state courts and child welfare personnel and also as a direct result of now disavowed federal assimilationist policies that sought to subdue Indian tribes by removing Indian children from their families, forbidding those children access to their culture and tribal communities, and forcing them to assimilate to majority culture often in truly horrific ways.
This included both private adoptions to non-Native households and mass internment of Native children at boarding schools over the strenuous objections of their families and their tribal governments. Generations of Indian children endured rampant physical, emotional, and sexual abuse in these institutions and in non-Native placements. And these abuses have been very well-documented for more than a century.
In 1978, Congress moved to remedy the tribal instability created by that mass removal of Indian children and fulfilling long-neglected treaty and trust obligations to protect Indian children and preserve the government-to-government relationship between tribes and the United States. Congress enacted ICWA, which is a largely procedural statute. It does not dictate outcomes. In fact, ICWA routinely results in non-Indian parents adopting Indian children, as happened for two of three prospective adoptive parents in this very case. ICWA guarantees tribal governments certain rights that are, again, purely procedural and jurisdictional in nature. This includes exclusive tribal court jurisdiction over reservation domiciliaries. It includes presumptive jurisdiction over nondomicilaries. It includes rights to intervene in state court proceedings, notice requirements, rights to petition for state court redress, and rights to retain records among some other things.
So what was all the fuss about? Shortly after the Court’s 2013 decision in Baby Girl, a Texas couple wishing to adopt an Indian child in the state of Texas filed suit in the Northern District of Texas against the United States and several federal agencies and officers, claiming ICWA was unconstitutional. They were joined by additional individual plaintiffs from Nevada and Minnesota and by the states of Louisiana and Indiana. Then, the Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians intervened as defendants, and the Navaho Nation intervened at the appellate stage. The case was before Judge Reed O’Connor, and he ended up holding that much of ICWA was unconstitutional. But on appeal, the Court of Appeals for the Fifth Circuit, en banc in 2021 and in 325 pages of opinions, reversed much of Judge O’Connor’s decision. Fifth Circuit Judges Dennis and Duncan delivered those opinions, which were joined in myriads subparts by various judges on the en banc court. As I described it in the “Seat at the Sitting” webinar we did in November, the Fifth Circuit decision was truly a hot mess.
But the Court of Appeals affirmed the District Court on some holdings that specific sections of ICWA violated the Fifth Amendment’s equal protection guarantee and the Tenth Amendment’s anti-commandeering principle. Specifically, the Fifth Circuit, by an equally divided court, affirmed the District Court’s holding that ICWA’s preference for placing Indian children with other Indian families, which is ICWA’s third adoptive preference after family placement and placement with a child’s tribe, and the foster care preference for licensed Indian foster homes violated equal protection. The Court of Appeals also concluded that the Tenth Amendment’s anti-commandeering principle was violated by ICWA’s “active efforts, qualified expert witness,” and record-keeping requirements, and an equally divided court affirmed the District Court’s holdings that placement preferences and notice requirements would violate the anti-commandeering principle if applied to state agencies.
The United States, the tribes, Texas, and the non-Indian individuals each filed petitions for certiorari. The Court granted review of all four petitions and consolidated them for further proceedings, which would ultimately form the single opinion here. Texas and the non-Indian individuals argued that Congress acted beyond its Indian Commerce Clause authority in enacting ICWA, that ICWA creates a race-based child custody system in violation of the Equal Protection Clause, and that ICWA violates the Anti-Commandeering Doctrine. Texas also argued that ICWA’s implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress. The United States and the tribes argued that Congress had the authority to enact ICWA, that ICWA does not violate the Anti-Commandeering Doctrine, and that ICWA does not violate the Equal Protection Clause and that Texas’s nondelegation challenge should be rejected.
Numerous amicus briefs were filed on both sides, including a brief filed on behalf of 497 Indian tribes. That’s 497 out of the 574 federally recognized tribes, so nearly all tribes filed a brief in support of ICWA, and that was also joined by 62 tribal organizations in support of the United States and the appellant tribes. The Brackeens, Texas, and their amici, including the states of Ohio and Oklahoma, argued that ICWA created a government-imposed and government-funded discriminatory regime, sorting children, their biological parents and potential non-Indian adoptive parents based on race and ancestry. The United States, as I say, nearly all Indian tribes, 23 states, and District -- the District of Columbia and many more amici organizations argued that ICWA is not predicated on racial classifications at all but instead on a child’s eligibility for citizenship in a federally recognized tribe as the term “Indian” is both defined in ICWA that way on eligibility for citizenship, and that’s also how the term “Indian” has been routinely understood as a political classification, both by Congress and by the Court.
The brief of the National Indigenous Women’s Resource Center, I always say if you’re going to read only one brief in this case, read that one because it connects the dots on the Court’s long-time understanding of the term “Indian” as a political classification and the length of that understanding to the Court’s Indian Country law enforcement and criminal jurisdiction jurisprudence. It also explains the critical link to the Court’s 1974 decision in a case called Morton v. Mancari, which is really the seminal case on Indian citizenship preference. That case upheld the 1934 Indian Reorganization Act, Indian preference in federal hiring, finding that “Indian” was a political classification and that the preference was rationally related to the United States’ conduct of its government-to-government relationship with Indian tribes, providing services through the Bureau of Indian Affairs. There were about sixteen issues in the Haaland v. Brackeen cases, including standing and redressability issues, given that two of the three couples had adopted the Indian children they sought to adopt, and the third Indian child had been adopted by her biological Indian grandmother. As to the anti-commandeering issues, whatever commandeering there is would seem to be tolerable to states with twenty-three states offering very full-throated support for ICWA and only about three opposing it. I should also add that about 30 states have now adopted state ICWA laws to try to better enforce ICWA and its principles within their own state law as well. ICWA’s generally been easily implemented by states in the nearly-fifty years of its existence.
So what happened at oral argument? I’m going to look to this. So incredibly well attended by Indian Country. A very cold November morning, people began lining up shortly after midnight waiting to get into the Court, hundreds and hundreds of people outside that weren’t able to get into the court praying, singing, protesting, a very emotional vigil, given Indian Country’s broad perceptions about what was at stake, the ability to protect children and truly the ability to continue to exist as tribal people.
And I’m going to share my screen because many of us felt very good about oral argument because we had what we thought was a sign at the Court. So standing in line, you’ll see here over the center tree as he’s flying away -- a bald eagle actually flew over us at the Court, and I’m going to zoom in so you can see him there. I don’t know how well you can see him, but trust me, it was a bald eagle that flew over us. And for most of us who are regular Supreme Court goers, I can say that was the first and only time I’ve ever had a bald eagle fly over me waiting to go into the Court. And the discussion amongst the tribal advocates and leaders who were there was a firm belief that the eagle was there to carry Indian children home and not to take them away. So that was a very auspicious sign for us.
We thought the arguments went very well, that the Court asked very informed, pointed questions, particularly Justice Barrett, really trying to home in on the practical application of ICWA and questioning how active efforts work in practice and really, across the board, excellent questioning in what was truly a grueling three hours plus of oral argument. And Indian Country waited with bated breath for the case to come down, and I think many, many, many tribal leaders and advocates were -- whatever they were doing at 10:00 a.m. Eastern time on every day in June, we would all go to the website and keep -- the Court’s website and keep hitting refresh, refresh, refresh, trying to understand what was happening in the case. And as I opened, the immediate reaction to this 7-2 victory was relief, gratitude, and “free-floating joy,” and I’ll come back to the free-floating word in a second.
Writing for the majority of the Court, Justice Barrett delivered the opinion and explained the Court’s holding very succinctly. And I’m quoting the majority opinion now, “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 issues are complicated, so for the details, read on. But the bottom line is we reject all of Petitioners’ challenges to the statute, some on the merits and others for lack of standing.”
The Court found that Congress has the power to enact ICWA, citing to two hundred years of precedents, truly to dozens and dozens of the Court’s own precedents, recognizing Congress’s broad ‘plenary’ -- that’s another word we’ll come back to -- plenary power with respect to Indian Affairs grounded in the Constitution. Justice Barrett wrote, “To be clear, however, plenary does not mean ‘free floating.’” She went on, “In some, Congress’s power to legislate with respect to Indian Affairs is well established and broad.” Again, she then cited to precedents in criminal law, domestic violence, employment, property tax, trade, the litany of the Court’s extensive record recognizing the broad powers of Congress.
Then, Justice Barrett explained, “Admittedly, our precedent is unwieldy because it rarely ties a challenged statute to a specific cord of constitutional authority. That makes it difficult to categorize cases and even harder to discern the limits on Congress’s power. Still, we have never wavered in our insistence that Congress’s Indian Affairs power is not absolute.” The Court, likewise, rejected the anti-commandeering challenge, finding that ICWA’s recordkeeping and notice provisions were in line with previous examples found to be constitutional by the Court. The Court did not reach the equal protection or nondelegation challenges for lack of standing.
How did Indian Country react to this? As the Rosebud Sioux Tribe explained in their press release on Brackeen, “In the past, tribal leaders have often felt like the Court was using AI, ChatGPT, or one of those things and just making up out of thin air with respect to Indian law cases because so often the Court’s Indian law precedents were completely out of step with tribes’ actual experience or tribes’ understanding of federal law, both as set forth by Congress and explained in various Court decisions.”
So tribes are often perplexed by what they get from the Court, but the opinion by Justice Barrett is really grounded in what the Framers established the nation-to-nation relationship between tribes and the United States. She noted, “We recognize that our case law puts Petitioners in a difficult spot. We have often sustained Indian legislation without specifying the source of Congress’s power, and we have insisted that Congress’s power has limits without saying what they are. Yet, Petitioners’ strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law. That would at least give us something to work with. Instead, they frame their arguments as if the slate were clean. More than two centuries in, it is anything but.”
What’s happening here is that the Court continues to learn about tribes’ governmental rules and our federalism. And the victory here shows that they’ve come a long way, including understanding that foundational principle that Congress has broad power over Indian Affairs, including the ability to recognize and protect tribal governments’ corresponding ability to protect Indian children. As I mentioned earlier, tribes’ views were that the potential ramifications of the Brackeen cases were enormous. The Texas, the Brackeens, and the other Plaintiffs were challenging the very foundation of Congressional power in Indian Affairs, the limited role of state governments in Indian Affairs under the Tenth Amendment, tribal sovereignty in relation to state court ICWA matters, and perhaps, and maybe most importantly, whether federal Indian law enactments violate the Equal Protection Clause of the Fourteenth Amendment and the equal protection component of the Fifth Amendment. If Plaintiffs won on any of those issues, whole swaths of Title XXV of the United States Code, “Indians,” would be subject to constitutional challenge, starting with Indian Country criminal jurisdiction. As numerous tribal leaders framed it, literally Indian Country’s entire existence was on the line in this case.
As Justice Gorsuch reflected in his concurring opinion, which was joined in Parts I and III by Justices Sotomayor and Jackson but not as to Parts II and IV, “The Indian Child Welfare Act did not emerge from a vacuum. It came as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties.” Justice Gorsuch continued, “That practice, in turn, was only the latest iteration of a much older policy of removing Indian children from their families, one initially spearheaded by federal officials with the aid of their state counterparts nearly 150 years ago. In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of tribes, something many federal and state officials over the years saw as a feature, not as a flaw. That is the story of ICWA.”
What Justice Gorsuch’s concurring opinion and the majority opinion reflect is that the Court has come to understand the atrocities that the federal government visited on Native Americans. The Court’s Brackeen ruling marks a turning point in that nation-to-nation relationship where all three branches of the federal government now stand united in respecting tribal sovereignty and the central role that tribal governments play in the welfare of Native children. The Court’s affirmation of Congress’s broad authority to legislate on Indian Affairs is completely in line with Federalist principles, and any limitations on that authority must be exceedingly narrow, given the Constitution’s explicit and implicit recognition of tribes’ preexisting governmental authority and the relationships with the United States. As Justice Gorsuch explained, again, in his concurring opinion, “In adopting the Indian Child Welfare Act, Congress exercised the lawful authority to secure the right of Indian parents to raise their families as they please, the right of Indian children to grow in their culture, and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.”
His concurring opinion provides a “full view of the Indian law bargain struck in our Constitution.” In no way should the Court’s holding here be seen as detrimental to state interests as the Constitution always contemplated tribes as a -- as sovereign bodies within our federalism. If anything, more work needs to be done to empower tribal nations for the betterment of all, and modern demographics should in no way be used to undermine that balance. There’s a lot of work for tribes to do in standing up their own governmental authorities so that that multi-sovereign structure in the Constitution is preserved.
Indeed, Justice Gorsuch painstakingly explained the constitutional origins of Congress’s Indian Affairs power in Part II of his opinion, and recall that Part II of his opinion, he’s writing just for himself. Justices Sotomayor and Jackson joined only in Parts I and III, but in Part II, he said, “Instead of a ‘free-floating’ Indian Affairs power, the Framers opted for a bundle of federal authorities tailored to the nation’s intercourse with Indians.” He recounted the history of the Court’s views, of Congress’s powers, and the exercise in the precise cases in which the Court stepped off the “doctrinal trail,” as he put it, “with a ‘free floating’ — that same word comes up again — invention of its own.” So he blames the Court, in part, for the mess.
And I’m going to read at some length from what he says in Part II of the concurrence. “In 1885, during the period of assimilationist federal policy, Congress enacted the Indian Major Crimes Act. Among other things, that law extended federal court jurisdiction over various crimes committed by Indians against Indians on tribal lands. In United States v. Kagama, this Court upheld the constitutionality of that act. In the process, though, it stepped off the doctrinal trail. Instead of examining the text and history of the Indian Commerce Clause, the Court offered a free-floating and purposivist account of the Constitution, describing it as extending broad “power to the general government” over tribal affairs. Building on that move, the Court would later come to describe the federal power over tribes as ‘plenary’.” Justice Gorsuch cites Amos and Lone Wolf v. Hitchcock there.
He continued, “Perhaps the Court meant well. Surely, many of its so-called plenary power cases reached results explainable under a proper reading of the Constitution’s enumerated powers. Maybe the turn of phrase even made some sense: Congress’s power with regard to tribes is plenary in that it leaves no room for state involvement. But as sometimes happens when this Court elides text and original meaning in favor of broad pronouncements about the Constitution’s purposes, the plenary-power idea baked in the prejudices of the day. The Court suggested that the federal government’s total power over tribes derived from its supposedly inherent right to “enforce its laws” over “the remnants of a race once powerful, now weak,” quoting Kagama.
Justice Gorsuch went on, “Of course, nothing of the sort follows from a reasoned analysis derived from the text or history of the United States Constitution. Instead, the plenary-power idea constituted an unprincipled assertion of raw federal authority. It rested on nothing more than judicial claims about putative constitutional purposes that aligned with contemporary policy preferences.” Justice Gorsuch concluded, “I hope that, in time, it will follow the implications of today’s decision where they lead and return us to the original bargain struck in the Constitution and, with it, the respect for Indian sovereignty it entails.”
Then, follows three more opinions. Number one, a concurring opinion by Justice Kavanaugh, writing only for himself, writing to emphasize that the Court did not address the equal protection issue as ICWA is applied to -- in individual foster care or in adoption proceedings. That’s because the federal officials who were sued in this case have nothing to do with ICWA application, which is done in state courts. They don’t make or direct any foster or adoption placement decisions. Justice Kavanaugh described the equal protection issues as “serious,” in his view.
Second, a dissenting opinion by Justice Thomas, also writing only for himself where he wrote to repeat things he’s said in several past opinions where he basically makes clear that he thinks all of Indian law is a crock. He does not believe that Congress has the power to enact ICWA, and these are things that he’s said many, many times, and he is simply not open to the arguments or history recounted by Justice Gorsuch in his concurring opinion. And then, thirdly, Justice Alito writes separately in a dissenting opinion and applauds the majority’s attempts to bring “coherence” to past precedents on Congressional power over Indian Affairs, but ultimately, he believes that, and I quote, “ICWA surpasses even a generous understanding of the Court’s Indian Affairs authority by commandeering state courts.”
So what does all of this portend more broadly for Indian law? As Justice Kavanaugh stated in oral argument in a case called United States v. Cooley — that was a 2021 Indian law case before the Court, addressing tribal law enforcement investigative authority, which ultimately resulted in a 9-0 victory for tribal interests — but at oral argument, Justice Kavanaugh was reading aloud from an amicus brief filed by former United States Attorneys with experience in Indian Country. And he quoted, reading aloud from the brief, “Criminal jurisdiction in Indian Country is an indefensible morass of complex, conflicting, and illogical commands layered in over decades via Congressional policies and court decisions and without the consent of tribal nations.” Justice Kavanaugh went on, “That leads me to think that one of the things we should be trying to do here is to do no harm because there’s lots of ripple effects from a broad decision.”
What we see from Cooley, from Denezpi, another opinion by Justice Barrett last term, now in Brackeen is that the Court has looked in the mirror and now recognizes the role that the Court has played in creating the indefensible morass of Indian law unmoored from the Constitution, not just in criminal law but in other areas. And the Court has determined, seeing that they are in a veritable legal hole, to at least stop digging. I’d say that’s the majority of the Court: let’s at least stop digging; avoid broad holdings and pronouncements; look for rationalizing theories; try to tie everything back to the Constitution, Framers’ statements, all the originalist material that we can get; but there’s not yet momentum to undo a lot of the past damage that the Court has had a role in creating. Justice Thomas just denies that the hole should exist. He just does not see Congressional authority to do most of what Congress has done with respect to Indian law and regulating relations with Indian tribes. Justice Alito laments the hole but does not yet see a rationalizing theory to find ICWA constitutional in this case, but Justice Gorsuch charts a different path.
And Justice Gorsuch, and this really can’t be overstated, has Indian Country’s deep and profound respect. He is the first justice on the Court to take the time to truly understand Indian law, tribes’ histories and roles in our federalism, and to take the time to write about Indian law so consistently in a way that shows the depth and breadth of his understanding and true caring. I’ve heard many tribal leaders say when they read what Justice Gorsuch writes, they feel heard, for the very time, at the Court, past tribal victories notwithstanding. And what a lot of Indian advocates see here in Justice Gorsuch’s concurring opinion is the road map for how to untie the indefensible morass, for how the Court might return to first principles to moor its future Indian law precedents, not just with rationalizing theories but in the tribes’ governmental role that is enshrined in the Constitution. That’s why he takes so much time to write about it so painstakingly in his concurring opinion.
So I would end my observations where Justice Gorsuch ended his concurring opinion focused on tribal sovereignty. And I’m just going to quote now through the end. “Often, Native American tribes that come to this Court seeking justice only to leave with bowed heads and empty hands. But that is not because this Court has no justice to offer them. Our Constitution reserves for the tribes a place, an enduring place, in the structure of American life. It promises them sovereignty for as long as they wish to keep it, and it secures that promise by divesting states of authority over Indian Affairs and by giving the federal government certain significant, but limited and enumerated, powers aimed at building a lasting peace.”
“In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please, the right of Indian children to grow in their culture, and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.” I’m happy to take any questions.
Sam Fendler: That was wonderful. Thank you so much, Jennifer, for giving us such a comprehensive discussion of the case and the opinion. We will now move into audience Q&A, so again, if you have a question, please enter it into the Q&A function at the bottom of your Zoom window. Jennifer, I want to ask you about, in the overarching sense, about the dissenting opinions. They seem, to me, to boil down, if not exclusively, almost exclusively to the principles of federalism and separation of powers. As a very fundamental and basic question, I’m curious if you could explain, in regards to Indian law just generally, what powers do state governments have, if anything? Or does the federal government retain the majority or all authority when dealing with the tribes?
Jennifer Weddle: Generally, states have no power over tribes, and that’s stated expressively in numerous Supreme Court opinions and stated by Justice Gorsuch multiple times in his concurring opinion here. I think where -- especially for Justices Alito and Thomas, who are very firmly rooted in protecting states’ rights and constantly asking the question, well, if the federal government has power to make states do something, or where did they get that power? Where did states give them the power in some particular area to act in their stead, that there has to be some grounding of where that power comes from. And I think the difficulty in Indian law context is that states’ rights were never part of the grand bargain on tribal relations that Justice Gorsuch refers to that ultimately was enshrined in the Constitution. There were a lot of failed experiments flowing out of the Articles of Confederation, where states were injected into Indian Affairs, and that was a chaotic disaster. And really to support the new federal government and a consistent state of relations with tribes and foreign entities, those powers were vested in the federal government.
So there’s no basis for states to exercise power over tribes, in part because tribes aren’t signatories to the Constitution. Tribes never ceded any authority to the federal government, and they certainly didn’t cede any to states. Rather, tribes retained whatever powers they had as nation states at the time of the founding of the United States, unless and until Congress acts to limit those powers in some way, which they’ve never done with respect to child welfare. In fact, they’ve only acted to protect it. And sometimes, we see mutual but divergent interests in protecting children that have some tension between what’s the authority of a state versus what an authority of a tribe.
And last term’s decision in Oklahoma v. Castro-Huerta is an example of that, where a lot of people, I think, misunderstand that as an Indian law case. It’s really a states’ rights case where the Court ruled that, again, in that indefensible morass about who gets to prosecute in Indian Country, the Court ruled that the state of Oklahoma could prosecute a non-Indian offender who had harmed a Native child and that there was no restriction -- no textual restriction in the Constitution or from Congress saying the state can’t prosecute a non-Indian person whose victim is an Indian. Even though that stood on ahead of very broad understanding of federal Indian law and the criminal and law enforcement context, it was enshrined in every U.S. Attorney’s manual for decades.
The Court, increasingly in the Indian law space, comes back to, “Show me the text,” which I think is a good thing. That’s what Justice Gorsuch did in his 2020 decision in McGirt v. Oklahoma where he found that the Muskogee Creek Nation’s reservation persisted, had not been disestablished in any clear language, and conversely, Justice Kavanaugh said the exact same thing in Castro-Huerta with, “Show me the text. Where does it say Oklahoma can’t prosecute non-Indians who victimize Indians.” And there is a state interest in protecting all children, even if those children happen to also be citizens of other jurisdictions as well. And I think what we see here in Brackeen is more of that same. Right? What has Congress specifically said? Where does that come from? It comes from this specific language in the Constitution.
And as I say, I think that’s the road map that Justice Gorsuch has set out that may help clear away a lot of the confusion that has resulted when the Court, in the past, has not stuck as closely to their knitting and referred to the text. I could have just said, “None,” and that would have been not as satisfying.
Sam Fendler: No, no. I think that’s very helpful. You mentioned the criminal law jurisdiction when a non-Native offender harms a Native American. How do you think that dovetails with the non-Native adopting families in this case?
Jennifer Weddle: So two different things, the broad context of who gets to prosecute bad guys in Indian Country, the Major Crimes Act referenced in Justice Gorsuch’s concurring opinion vested exclusive federal prosecutorial authority over so-called major crimes. That authority is often not exercised by federal authorities. They routinely decline to prosecute even major cases. The Court’s 1978 decision in a case called Oliphant v. Suquamish Tribe held that tribal prosecution of non-Indians would be inconsistent with tribes’ status as conquered peoples, and therefore, there is no tribal prosecutorial authority over non-Indians. That has created a huge public safety hazard in Indian Country, which is actually kind of the reverse of Castro-Huerta. Right?
Imagine as a territorial sovereign, you’re told one day, “You can’t do anything to protect the people living in your territory.” That was what the state of Oklahoma was fighting for in Castro-Huerta was the ability to protect their citizens. That’s the same thing that tribes want and ultimately will require the Court’s overturn of the Oliphant decision or an Oliphant fix to be passed by Congress because that’s where a lot of the poison of the jurisdictional gaps in Indian Country really started. Because there’s exclusive federal jurisdiction over the major crimes and tribes don’t have any prosecutorial authority over non-Indians, the minor crimes would often go unprosecuted in Indian Country. There are some exceptions to that: tribal authority recognized under the Violence Against Women Act over certain domestic violence offenders where the tribe meets certain due process requirements and that sort of thing. And all of that runs into the Court’s consistent observation that state laws generally have no force or effect in Indian Country, that the Constitution did that expressly by design to keep states out of dealing with Indian tribes and reserving that exclusively to the federal government.
Here, child welfare, again, over various shifts in federal policy over time, for 150 years, the federal policy was kill the Indian and save the man, take the -- take Indian children away, that tribes would just eventually fade out of existence, that Indians would be assimilated. That goal justified any number of abhorrent practices, and confronted with that in 1978, Congress said, “We’re not doing that anymore. We’re disavowing that. And instead, we’re going to put child welfare decision-making back with the tribal governments where these children will be -- are eligible for citizenship. And we’re going to give them rights to notice and participation, and we’re going to let them be the primary authority over reservation domiciliaries. We’re going to give them presumptive authority over nondomiciliaries. They’re going to get access and data and the ability to seek redress in the state courts.”
And it creates preferences based on citizenship, ICWA does, preferences for family relationships, which has now emerged as the platinum standard in child welfare nationally. And there’s lots of empirical data on kinship value in foster and adoptive placements. It sets second preference for other families in the child’s own tribe, again, broader kinship, and it sets a placement for other tribal placements -- a preference for other tribal placements. And there was a lot of questions about that at oral argument: well, is that somehow making this a racial preference because it’s not just about the single tribe, or perhaps multiple tribes, where a child might be eligible for enrollment. Somehow, any Indian tribe is better. And I think, in practice, that’s much narrower.
Generally, preferences are amongst tribes with shared histories, cultures; sometimes on a shared reservation, where multiple different tribes are on one reservation; or tribes located within the same state who would attend many of the same powwows or other cultural activities that can achieve those aims of keeping Indian children connected with their Indian culture. Tribes amongst themselves have government-to-government, tribe-to-tribe relationships, which are what ICWA’s third placement preference really governs. And the problem for a lot of the non-Native adoptive parent challengers is that they don’t like that they come last in that line and that the family and governmental relationships come first. And Congress, in enacting ICWA, has a very extensive legislative history detailing all the expressed findings that Congress made as to why that is and that they had a very good reason for doing it that way.
Sam Fendler: Concerning the future of Indian law, you discussed this, and it seems to be fairly well agreed upon that a lot of the jurisprudence, the precedents concerning Indian law be confusing, and it seems as though that really came to a head in this Fifth Circuit opinion. And Jennifer, you said that the answer going forward should be in the text. And you can correct me if I’m wrong, but you seem to say that, yes, there’s some confusing precedent, but we can solve all of that by looking at the text. I’m wondering if you could expound upon what you mean by that, what pieces of the text. Do you think it’s the Indian Commerce Clause? How do you think the text can settle some of these issues going forward?
Jennifer Weddle: My kind of cheeky answer would be to sleep with Justice Gorsuch’s concurring opinion under your pillow and just follow that. If you can do that, then that works. And it’s the text of the Constitution. It’s in the Federalist Papers. It’s in contemporary understandings. It’s in the extensive history that’s available to us. Justice Gorsuch cites two: Professor Greg Ablavsky’s excellent work around the original understandings of the Indian Commerce Clause and the -- those failed experiments of the Articles of Confederation.
It’s very straight forward, I think, to follow the Constitution and say, “No matter what mess has been made of it in the interim, if we stick with this, that’s good.” And that’s good from Indian Country’s perspective because that -- the Constitution preserves and protects that government-to-government relationship as it has been further developed and protected in over 400 treaties between the United States and Indian tribes and in numerous pieces of legislation. And I think now you, as I remarked, you now have all branches of government on the same page about tribes’ role in our federalism, tribes’ role as governments in our federalism.
And it’s going to take a while to do some brush clearing to get all this other mess that’s been made from bad federal policies, unconstitutional federal policies, and bad Supreme Court decisions that sought to, as Justice Gorsuch put it, with some purposivism about, well, we’re going to say this is what Indian law is because that suits Congress’s purpose right now and instead referring back to what’s the governmental role that tribes have. If the federal government is exercising power over tribes, where do they get that, and what are its metes and bounds? And the Constitution says states have no power over tribes, so tribal sovereignty’s at the core, and it should be what is the tribe deciding in its own self-determination, and it should be a -- very much a declining wedge for what Congress feels the need to do to regulate in that relationship.
Sam Fendler: Jennifer, this was a 7-2 decision, and it seems as though the majority is not necessarily, to put it one way, buying what the dissenters are selling. So what do you think this means with a pretty strong seven for future Indian law cases at the Supreme Court?
Jennifer Weddle: I think most tribal leaders and Indian law scholars would say it’s great the sense of relief at feeling heard, at feeling that the rights that they believe were well understood by tribes at the time of the Founding are there, that their treaties would be honored, that that’s the direction that preserves our federalism. And I’ve also heard a lot of great joy, the “free-floating” joy I described from various Native scholars and commentators who said, look, I’m going to eat my words now that Justice Kavanaugh joined this majority opinion, all of it, and Chief Justice Roberts joined this majority opinion, all of it. And people that might be critical of those justices in other instances now have a restored faith that the Court works and our federalism works and our democracy works. When you can have periods of disagreement over centuries about what policy is right, but when you stick to your knitting and you go back to the Constitution, you can get to the right result in governments being able to protect children, which is what this case was all about.
Sam Fendler: Well, we have about two and a half minutes left, I think, just enough time for some parting thoughts for the audience, if you have any.
Jennifer Weddle: There was a couple questions in the chat, and I’m just looking at those. One says, “This is the most biased FedSoc webinar they’ve ever had.” I’m sorry. Not trying to be biased but personally very happy with the decision. The question, “Is tribal membership a political distinction?” Yes. “Is that national origin discrimination?” Yes, according to the Ninth Circuit but one in which tribes can engage. And am I concerned that there were not five votes to support Mancari? No, I think there were seven votes to support Mancari, so I feel good. I’d start with where I began: relief, gratitude for this decision, and free-floating optimism for the future.
Sam Fendler: Wonderful. Well, Jennifer, on behalf of The Federalist Society, I want to thank you very much for lending us the benefit of your time and your expertise today. To our audience, I want to thank you as well for joining in. We greatly appreciate your participation. Please check out our website, fedsoc.org, or you can follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in. And we are adjourned.