ICWA survives its biggest challenge with Brackeen decision
In one of the most eagerly-anticipated decisions in the area of Native American Law, the Supreme Court denied all constitutional challenges to the federal Indian Child Welfare Act (ICWA). The decision in Haaland v. Brackeen was 7-2, with Justice Amy Coney Barrett writing the majority opinion, and Justices Clarence Thomas and Samuel Alito writing dissenting opinions.
There’s a lot to unpack in this, so right now let’s just give you the briefest of overviews. There were three challenges to the ICWA:
ICWA was unconsititutional race-based discrimination
ICWA violated the “anti-commandeering” doctrine, which holds that the federal government cannot co-opt (or “commandeer”) state agencies to perform federal functions
ICWA violated the “non-delegation” doctrine, which prohibits Congress from delegating law-making power to an outside body.
The majority opinion found that the ICWA was within Congress’ powers under Article I of the Constitution to pass, and found that it did not violate the anti-commandeering doctrine. It did not answer the questions about either race-based discrimination or non-delegation because it found that the parties challenging ICWA lacked standing - meaning that they did not suffer a direct harm and were not specifically and directly affected by the statute in question.
We will have much more coverage of Brackeen once we’ve had a chance to digest the order and consider its implications. But given that this decision had the potential to not only up-end ICWA nationwide, but to disrupt the entire area of law, the decision today is of massive consequence.
