On November 9, the Supreme Court of the United States will hear a case that Joseph William Singer ’81, Harvard Law School’s Bussey Professor of Law, says could have “revolutionary, catastrophic consequences” for the relationship between Indian nations and the United States.
At the center of Brackeen v. Haaland is the Indian Child Welfare Act, a 1978 law that governs the adoptive placement of Native American children. Among other provisions, the statute prioritizes the child’s extended family, members of their tribe, or other Indian families in fostering and adoption. Three states, along with Brackeen and several other non-Native people and one tribal member wishing to adopt Native children, sued the federal government, arguing that the statute violates the Constitution. The suit substantially prevailed in the federal district court, but the U.S. Court of Appeals for the Fifth Circuit issued a mixed opinion, leading the Supreme Court to weigh in.
In an interview with Harvard Law Today, Singer breaks down the complex case, which he says involves a tangle of legal issues — including state power under Article I of the Constitution and the Equal Protection Clause — that get to the very foundation of the federal government’s relationship with American Indian tribes.
Harvard Law Today: Why did Congress think the Indian Child Welfare Act was necessary?
Joseph Singer: My understanding is that prior to the law, there was significant evidence that many tribal children were being taken away from their families by state child welfare agencies, and that parental rights were being terminated, and they were being adopted not by other members of their extended family or members of the same tribe, or even other Indian families, but by non-Indians. The numbers were significant — one report found that 25 to 35% of all Native children were being removed from their families and placed with non-Native custodians or parents. Over time, that would conceivably have the effect of reducing the numbers of tribal members that otherwise would have existed and severing any connection those children had to tribal cultures and political systems.
It was also Congress’s view, and the view of the Indian nations, that this was not in the best interests of the children themselves, and that was partly because in a lot of different tribal family structures and social relationships, children would often spend extended amounts of time with family members who are not part of the nuclear family. That doesn’t constitute neglect, it’s just a feature of family life and culture. Also, there were some tribes that were poor, and the idea that somehow you’d be better off with a richer family than a poor family was thought to be incorrect and didn’t take into account the trauma of being ripped away from the people that you’ve known and your cultural and political environment. It’s not very different from other countries that have gotten upset that a lot of their kids were being adopted in the United States and have passed laws to limit the exportation of their children to American families.
It was also reminiscent of the period at the end of the 19th century, beginning of the 20th century, when the federal government itself forcibly took Indian children away from their parents and their nations and brought them to boarding schools. That was often done against the will of the parents, during a time when the United States was trying to “civilize the Indians.” That meant changing their appearance, cutting boys’ hair, punishing them for speaking tribal languages, and punishing them and their families for practicing tribal religious norms and practices.
That was an incredibly painful part of history for the tribes. Removal of Indian children for adoption felt like a new form of the boarding school system and was traumatizing for the children and the tribes. Moreover, it was unnecessary where there were other family members or other people in the tribe who could have adopted or been guardians for the children, rather than non-Indians.
HLT: What are the main legal issues in this case? What are Brackeen and the states arguing?
Singer: The most basic one is the claim that somehow the federal government has no jurisdiction over child custody of children who are citizens of Indian nations. The claim is that only the states have power over child custody, but that has never been true for Native children. What is very — not just surprising, but shocking — about that argument is how inconsistent it is with every legal source I can imagine: the text of the Constitution, the original intent of the framers, the history of the United States, and the existence of tribal sovereignty.
HLT: Could you tell me more about that history, and how it relates here?
Singer: The Articles of Confederation, which were in effect from 1783 to 1789, gave the Continental Congress exclusive power to manage relationships with Indian nations. But it also said ambiguously that the legislative jurisdiction of the states within their limits should not be infringed. James Madison made fun of this in the 42nd Federalist Paper where he said something like, “How you can give 100% of the authority to the federal government, while reserving some for the states? That is a mathematical impossibility.” This led to terrible problems during the period between the Declaration of Independence and the Constitution. Many states were messing up relations with the Indian nations. They were taking land from tribes. They were allowing their citizens to settle on tribal land in a way that was leading to violence. And in general, the states were really bad managers of relations between their own citizens and the tribes.
So, the United States looked again at what Great Britain had done. In 1763, Great Britain announced with a proclamation of the king that only the central government in England could approve any transfers of property from tribes to others. The idea was to have a centralized mechanism for transfers of land to prevent people from going out to tribal land and claiming that they bought it or legitimately settled there. And that meant stopping the states from negotiating treaties with Indian nations or seizing their lands.
The Constitution was meant to go back to that earlier process, and to centralize all power over Indian affairs in the federal government. That was done through the Indian Commerce Clause, which says that Congress has the power to regulate commerce with the Indian tribes, as well as the treaty clause which gave the United States, not the states, the power to negotiate treaties with Native nations. The two exceptions that had given the states some amount of authority in the Articles of Confederation were taken out of the Constitution. And so, one of the major purposes of the Constitution was to centralize power over Indian affairs in the federal government, and to keep the states out of it altogether. If you compare the text of the Articles of Confederation to the text of the Constitution, it becomes clear that the Constitution was intended to locate all authority over Indian affairs to the federal government.
HLT: What happened after the Constitution was adopted?
Singer: The Constitution was adopted in 1789. In 1790, one year later, Congress adopted the first of the trade and intercourse acts, and that act regulated the sale of tribal lands. But something else that it did was provide for federal criminal prosecution of non-Indians who committed crimes against Indians in Indian country. If you want to make the argument that the Indian Commerce Clause only allows regulation of “commerce” and not child custody, how do you explain the criminal jurisdiction provisions of that 1790 statute? You can’t. That actually demonstrates that the original intent was that commerce meant both trade and “intercourse,” and that intercourse was all dealings of any kind, including criminal law. That was confirmed in the 1832 case of Worcester v. Georgia, where the state of Georgia tried to apply its law within Indian country. The holding of the case said that Georgia’s laws have no effect in Cherokee Country, that the United States alone regulates affairs with Indians, and the states have no power whatsoever. That was later called plenary power.
Indian nations are called “domestic dependent nations” … They are separate sovereigns, separate from the U.S., separate from the states. They are sovereigns that pre-exist the United States, and their sovereignty continues unless it is limited or taken away by federal action.
There’s also a case in 1886 called United States v. Kagama, which approved a congressional statute called the Major Crimes Act, which provided for federal prosecution of major crimes by one Indian against another. There is no real text in the Constitution that justifies that other than the Indian Commerce Clause. Nevertheless, the Supreme Court said, “We don’t think murder is commerce. We don’t think criminal law is commerce.” But they found within the structure of the Constitution that the federal government has to have the power, because the power has to be somewhere, and it can’t be in the state, and Congress felt that the tribal treatment of murder was so inadequate as to be a violation of the rule of law. Quite ironic that a tribal reconciliation ceremony was thought to be barbaric because civilized people kill murderers and the tribe in that case did not impose the death penalty against the perpetrator. That was the same era when the United States started creating boarding schools and reservation schools run by religious entities for tribal kids, and they started taking kids away in order to civilize them, educate them, and Christianize them.
We also have a recent Supreme Court case from 2021 — U.S. v. Cooley — that repeats that the federal government has plenary power over Indian affairs. Congress can legislate on any subject whatsoever regarding Indians, and so, given that Congress has plenary power over Indian nations and their citizens, there is no basis whatsoever for saying that just because this case involves child custody, that somehow Congress doesn’t have the power to pass the Indian Child Welfare Act. Whatever precedents the petitioners may cite that talk about the fact that there’s no federal jurisdiction over child custody, those precedents did not concern tribes or tribal children.
HLT: There is another major issue at stake in the case. The petitioners also argue that the statute violates equal protection, because, in their view, “Indian” could be seen as a racial classification — not a political one. How should we think about this claim?
Singer: In 1974, we have this case, Morton v. Mancari, which was about a preference in hiring for the Bureau of Indian Affairs. Essentially, tribal members had a preference over other people to get jobs at the Bureau of Indian Affairs, and the Supreme Court said that that was completely legitimate and was not a violation of the Equal Protection Clause. In effect, it said that the classification was political, not racial, because the classification was based on tribal membership, which is citizenship in a sovereign nation.
Indian nations are called “domestic dependent nations” — that is the wording that was used in a case the Supreme Court decided in 1831. They are separate sovereigns, separate from the U.S., separate from the states. They are sovereigns that pre-exist the United States, and their sovereignty continues unless it is limited or taken away by federal action.
Some people get concerned because tribal membership is usually defined by tribes to have something to do with descent from another tribal member. But I’ve always found it very strange that people think that that makes it necessarily racial. My wife and I have a daughter. She’s an American citizen. Why is she an American citizen? She’s an American citizen because we’re American citizens. She gets her citizenship by biological descent from us, and by federal law. This is no different from that. The only complication is that this statute also applies to children who were eligible for membership but have not yet been formally enrolled in a tribe. There was an argument to the effect of, “Those aren’t tribal citizens, so therefore this must be based on race.” But that makes no sense to me. Whether someone is an enrolled citizen depends on tribal law, and the tribes don’t necessarily make you a citizen automatically. There are many tribes that require some process to be enrolled, and the Indian Child Welfare Act was meant to cover those children as well as the ones that are automatically citizens upon their birth. The eligibility for citizenship means that it is a political classification, not a racial one.
HLT: Are there any other important claims the Supreme Court will consider in this case?
Singer: The statute also has preferences in adoption for a member of the child’s family, a member of the same tribe, or a member of a different tribe — and the tribes are allowed to alter those preferences. There is a claim that that is delegating governing power to someone else, and there is a non-delegation doctrine that says you cannot delegate certain questions to administrative agencies or private parties. But tribes are not administrative agencies and they are not private persons — they’re separate sovereigns. And Congress has quite frequently allowed tribal law to apply in certain instances. For example, in inheritance of allotments, which are individual properties that are subject to restraints on alienation, Congress created a probate code, but authorizes tribes to deviate from that by adopting their own probate codes. That should be within the plenary power of Congress to recognize the authority of Indian nations to govern issues that concern them.
There is also this claim about the anti-commandeering doctrine, which says the federal government cannot enlist state officials to enforce federal laws. That’s a complicated doctrine, but if the federal law is regulating both private and public actors alike, with no differentiation, then this is just the substantive rule of law governing interpersonal relations. Requiring a state judge to comply with federal law is not illegitimate “commandeering” of a state official. If Congress has the power to pass a law, it has the power to require state judges to comply with it and enforce it. That’s just a matter of preemption under the Supremacy Clause. That’s not commandeering judges; it’s just creating a rule of action governing interpersonal relationships, and ordering anybody — public, private — to comply with the federal statute.
[The Court’s decision] could have revolutionary, catastrophic consequences. There are hundreds of treaties with Indian nations that are still in effect. If you can’t treat Indian nations as sovereigns, if you can’t treat Indians differently from non-Indians, does that make all those treaties unconstitutional?
HLT: In your view, what happens if the Supreme Court decides this case in favor of Brackeen?
Singer: Depending on what the Court does, it could have revolutionary, catastrophic consequences. There are hundreds of treaties with Indian nations that are still in effect. If you can’t treat Indian nations as sovereigns, if you can’t treat Indians differently from non-Indians, does that make all those treaties unconstitutional? The Indian Gaming Regulatory Act regulates Indian gaming — is that unconstitutional? Title 25 of the U.S. Code is entitled “Indians.” There are many laws about Indians — is all of that unconstitutional? If they do what the petitioners are asking them to do, it would be quite destructive of tribal sovereignty and federal Indian law. It’s very hard for me to understand what the world would look like after that.
We do have tribes. They are sovereigns. They do have laws, governments, police. They’ve got courts and citizens. The tribes are the governments on the reservations. They govern their own lands, even non-Indians who enter their own lands. What happens to all of that law if Congress can’t distinguish between tribal members and non-members?