Show Notes - Haaland v. Brackeen, 599 U.S. ___ (2023)
Episode:
#51
Title:
Supreme Court Wrap Up for Haaland v Brackeen
(Landmark Indian Commerce Clause Case)
Summary:
The Indian Child Welfare Act (ICWA) governs state court adoption and foster care proceedings involving Indian children, requiring placement of an Indian child according to the Act’s hierarchical preferences absent a finding of “good cause” to depart from them, 25 U.S.C. 1915(a), (b). Indian families or institutions from any tribe (not just the tribe to which the child has a tie) outrank unrelated non-Indians or non-Indian institutions. The child’s tribe may alter the prioritization order. The preferences of the Indian child or her parent generally cannot trump those set by statute or tribal resolution. In involuntary proceedings, the Indian child’s parent or custodian and tribe must be given notice of any custody proceedings, and the right to intervene. ICWA requires a party seeking to terminate parental rights or to remove an Indian child from an unsafe environment to satisfy the court that active efforts have been made to provide remedial services; a court cannot order relief unless the party demonstrates, by a heightened burden of proof and expert testimony, that the child is likely to suffer serious harm. A biological parent who voluntarily gives up an Indian child cannot necessarily choose the child’s placement. The tribe has a right to intervene and can enforce ICWA’s placement preferences. States must keep certain records and transmit specified information to the Secretary of the Interior.
The Supreme Court concluded that ICWA is consistent with Congress’s Article I authority and that conflicting state family law is preempted. Requirements concerning “active efforts” to keep Indian families together do not command the states to deploy their executive or legislative power to implement federal policy. The provisions apply to “any party” who initiates an involuntary proceeding–private individuals, agencies, and government entities. Legislation that applies “evenhandedly” to state and private actors does not typically implicate the Tenth Amendment. ICWA’s requirement that state agencies perform a “diligent search” for placements that satisfy ICWA’s hierarchy also applies to both private and public parties. Congress can require state courts to enforce federal law and may impose ancillary record-keeping requirements related to state-court proceedings without violating the Tenth Amendment.
The Court did not address an equal protection challenge to ICWA’s placement preferences and a non-delegation challenge to the provision allowing tribes to alter the placement preferences, citing lack of standing to raise the challenges.
Sources:
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