Haaland v. Brackeen, which the Supreme Court handed down on Thursday, is a case about an atrocity committed by the United States of America over the course of many decades.
For much of our nation’s history, American Indian children were taken from their families and sent to boarding schools, where these children were forced to abandon their language and customs, and to behave like white Americans. As the founder of one of these schools said in 1892, “all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.”
But Brackeen is also a case about the US Congress’s decision that Americans today must be better than our ancestors. In 1978, Congress enacted the Indian Child Welfare Act (ICWA), which provides an array of safeguards preventing Indian children from being removed from their families and their communities. In its 7-2 decision in Brackeen, the Supreme Court rejected an array of constitutional challenges a group of non-Indian families made to this law.
(This piece will use the term “Indian” to refer to tribal citizens, and not “Native American” because the word “Indian” has a very precise legal meaning in federal law that is distinct from the meaning of the term “Native.”)
These families, who wanted to adopt American Indian children, alleged that the ICWA violates the Constitution in at least four different ways.
The fact that ICWA has been on the books for more than four decades and no one has noticed these alleged constitutional flaws until very recently should give any reasonable judge pause. Indeed, this lawsuit may not have been taken seriously if Texas’s attorney general hadn’t filed a similar suit, and if these cases were not heard by Reed O’Connor, a former Republican Capitol Hill staffer best known for his failed effort to invalidate the entire Affordable Care Act. Five years ago, O’Connor declared ICWA unconstitutional.
In any event, Justice Amy Coney Barrett’s majority opinion in Brackeen is a tour de force rejection of O’Connor’s position. Along the way, she repeatedly chastises ICWA’s opponents for making arguments that cannot be squared with the Court’s precedents. Sample quote from Barrett’s opinion: “Once again, petitioners make no argument that takes our cases on their own terms.”
The fact that Barrett, one of the Court’s self-avowed “originalists,” wrote this opinion is itself remarkable. Originalism is the belief that the Constitution must be read as it was understood at the time it was drafted or ratified. In practice, however, originalism often does little more than give judges an excuse to ignore precedents that they deem inconsistent with historical texts.
The Brackeen plaintiffs had good reasons to believe that the Court might abandon longstanding precedents permitting Congress to enact laws like ICWA after the Court’s previous term — when it overruled multiple landmark Supreme Court decisions including Roe v. Wade.
But there are early signs that the Court may be correcting its course after a term when a majority of the justices seemed to reject the very idea that the law should be predictable and consistent.
Last week, the Court handed down decisions protecting voting rights and rejecting an attack on Medicaid. In both of these cases, conservative litigants relied on arguments that several of the Court’s Republican appointees have embraced in the past. Yet, in both cases, the Court rejected these arguments, and instead issued opinions celebrating the Court’s obligation to follow precedent. As Justice Ketanji Brown Jackson wrote in the Medicaid case, “something more than ‘ambiguous historical evidence’ is required before we will ‘flatly overrule a number of major decisions of this Court.’”
Brackeen adds a third data point supporting the argument that the Court may have realized it went too far in its previous term, and that it might want to discourage judges like O’Connor from treating every binding decision the Court has handed down in the past as optional.
The Indian Child Welfare Act, briefly explained
ICWA arises out of two insights, one moral, the other practical. The first is that the law must provide safeguards to ensure that the cultural genocide the United States committed against Indians, a sustained effort over many years to destroy tribal cultures, is never repeated.
The second insight is that, despite this commitment, there will be times when a state government needs to place an Indian child in a home other than the child’s parents’ home. Such a child may be orphaned. Or their parents may choose to give the child up for adoption. Or, in rare and tragic cases, a court may deem an Indian child’s parents unfit to raise them.
When an Indian child is to be placed in another home, ICWA sets up a hierarchy of preferences that state officials must obey. If possible, the child should be placed with a member of their own extended family. If that is not possible, the child should be placed with a member of the child’s tribe. And, when that is not possible, the child should be placed with another Indian family.
The plaintiffs raised an array of constitutional challenges to this hierarchy, raising arguments that would have stripped Congress of much of its authority over Indian affairs, while also reworking the balance of power between states and the federal government.
Barrett’s opinion is a celebration of precedent, and at least a partial rejection of originalism
As Barrett writes, the Supreme Court has long held that “Congress’s power to legislate with respect to the Indian tribes [is] ‘plenary and exclusive,’” meaning that Congress may pass laws as it chooses regarding US-Indian relations, so long as those laws do not violate an individual constitutional right. This well-established understanding of the Constitution, in Barrett’s words, puts the Brackeen plaintiffs “in a difficult spot.”
More than that, much of Barrett’s opinion seems to draw a fence around the originalist project — declaring on behalf of her Court that it will not cast precedents aside solely because someone makes a clever historical argument.
Barrett faults the plaintiffs for “criticizing our precedent as inconsistent with the Constitution’s original meaning” without offering an “account of how their argument fits within the landscape of our case law.” While she hints at the possibility that the Court might view ICWA more skeptically if many years of precedents didn’t support its constitutionality, she ultimately rejects the originalist idea that her Court can simply walk away from those precedents.
The Brackeen plaintiffs “frame their arguments as if the slate were clean,” she writes, adding that “more than two centuries in, it is anything but.”
Barrett’s opinion is also remarkable in its efficiency. The Brackeen plaintiffs raise a simply dizzying array of constitutional objections to ICWA, yet Barrett disposes of all of them in a 34-page opinion that is often curt toward these plaintiffs’ efforts to change the law.
The plaintiffs, for example, argued that ICWA violates a doctrine known as “anti-commandeering,” which limits the federal government’s ability to impose certain obligations on the states. Essentially, they argued that ICWA cannot require state courts hearing child custody disputes to implement a federal policy governing Indian children.
But, as Barrett writes, “this argument runs headlong into the Constitution.” She quotes the Constitution’s Supremacy Clause, which provides that “the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” And then she concludes her very brief analysis of this anti-commandeering argument with three dismissive words: “End of story.”
All of this said, Barrett’s opinion does leave the door open to one possible future challenge to ICWA. The plaintiffs argued that, by treating Indian families differently than non-Indian families, ICWA violates the Constitution by discriminating on the basis of race.
This argument is incorrect, as both federal law and many tribal laws distinguish between membership in an Indian tribe and Native American ancestry. ICWA does not apply to all people of Native descent. It only applies to children who are “a member of an Indian tribe” or who are “eligible for membership in an Indian tribe and [are] the biological child of a member of an Indian tribe.” And tribes may decide who they admit as members.
Some tribes, for example, extend citizenship to the descendants of Black people who were enslaved by members of the tribe, even though these Black tribal citizens may not be blood descendants of the tribe’s Indigenous citizens. So ICWA applies to the Black child of a Black member of the Cherokee Nation, for example, but it does not apply to a Native American child whose parents are not citizens of any tribe.
The law, in other words, is race-neutral. It draws distinctions based on tribal membership and not based on race.
In any event, Barrett’s opinion does not reach the question of whether ICWA engages in race discrimination, largely because her Court determined that the families challenging ICWA on these grounds sued the wrong defendant — they sued federal officials, even though ICWA is implemented by state officials. It is possible that some other plaintiff will correct this error in a future case, thus allowing the court to reconsider if ICWA discriminates on the basis of race.
Yet, while Brackeen does not resolve this question directly, the Supreme Court held in Morton v. Mancari (1974), that federal law may give special treatment to American Indians, so long as that treatment “is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities.” So Brackeen’s repeated emphasis on the importance of following precedent should discourage lower court judges from ignoring the Morton decision.
How seriously should we treat the Court’s recent turn toward honoring precedent?
It remains to be seen whether the Court’s sudden interest in obeying precedents will have staying power. And it’s still a bad idea to bet that the Court will reaffirm its past decisions permitting affirmative action in university admissions, when two cases challenging affirmative action are decided in the coming weeks.
It’s also normal for liberal litigants to rack up a few high-profile victories even as the Supreme Court moves to the right. When the Court shifts rightward, conservative litigants are more likely to bring Hail Mary cases raising arguments that would not have prevailed before a more moderate panel of justices. It is inevitable that some of these Hail Mary arguments will go too far, even for a very conservative justice like Barrett. That may explain the result in Brackeen.
Yet it’s hard to miss the fact that, after a term when the Court repeatedly indulged its most reactionary excesses — overruling Roe, abandoning a seminal precedent separating church and state, and giving itself an unchecked veto power over environmental regulations — the justices have now handed down three decisions in the last two weeks that proclaim the need to follow precedent and that reject arguments that have persuaded conservative judges in the past.
It is, at least, possible that the Court may have recognized that it sent the wrong message to lower courts last term.
Correction, 3 pm ET: This article previously misidentified the legal doctrine governing the federal-state government relationship. It is the “anti-commandeering” doctrine.