Why Brackeen Is Not the End of the ICWA Story

I’m at the Cato Institute in Washington, D.C., today, to speak about the Supreme Court’s decision in Haaland v. Brackeen, the Indian Child Welfare Act (ICWA) case. The case proved anticlimactic this June, when the court held that none of the parties to the lawsuit had the legally required “standing” to challenge the constitutionality of its racially discriminatory provisions. That result means that lawyers will just have to keep making these arguments until the court does decide to address the question. For more on what the court decided and what remains to be addressed, you can read my written commentary on the case in the new issue of the Cato Supreme Court Review, published today.

Although the Brackeen decision didn’t address the racial angle, it did hold that ICWA falls within Congress’s so-called “plenary” power to legislate with respect to Native Americans. But one of the more unusual features of the case is the fact that Justice Clarence Thomas—who would have declared ICWA unconstitutional—and Justice Neil Gorsuch—who would have upheld it—agreed that there is no “plenary” power. That notion has been stitched together from a series of now-obsolete legal theories, which, among other things, ignores the fact that American Indians are no longer “foreigners” or “aliens,” but are citizens of the United States, entitled to the same legal protections that all other Americans enjoy—protections that ICWA takes away.

You can learn more about our work on this issue here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.