On June 15, the U.S. Supreme Court upheld the Indian Child Welfare Act (ICWA), in Haaland v. Brackeen. Here, Professor Gregory Ablavsky, a legal historian whose scholarship and amicus brief were cited by justices on both sides of the decision—by Justices Gorsuch in his concurring opinion and Justice Thomas in dissent—discusses key points of the decision.

What is at the heart of this decision?

There are so many things that are at the heart of the case. Let’s start with the politics. I think the case reflects both a very longstanding attack and critique of tribal sovereignty, what some scholars have called the anti-sovereignty movement, coupled with the culmination of a certain kind of conservative colorblindness that views anything that they deem to be a racial classification as anathema. The confluence of those two things in this case has been striking.

Legally, the case was an attempt to throw everything against the wall and see what stuck. It began as an equal protection challenge, but then the plaintiffs added in a lot more: an Article I challenge, an anti-commandeering challenge, a non-delegation challenge. It was really a kitchen sink attempt to cobble together various arguments and use them to overturn the heart of federal Indian law. So, it was both a wholesale attack on the idea of tribal sovereignty itself and also a sort of Frankenstein’s monster of conservative jurisprudential theories bred in a lab.

But the Court upheld ICWA, the Indian Child Welfare Act, right? Why is that important?

Yes. By a 7–2 vote, the court upheld the Indian Child Welfare Act. ICWA is a really important statute, particularly in light of the enormous harm that has been done to Native communities by removing Native children. ICWA basically says that when a parent’s rights over an Indian child are being terminated–and it defines who counts as an Indian child—there are certain procedural protections that come into play. First of all, the tribe has either exclusive or presumptive jurisdiction. If the case doesn’t go to tribal court and it remains in state court, which is permitted if there’s good cause, then the tribe has the right to intervene in the state court proceedings. And there are certain procedural protections and placement preferences that state courts are obligated to follow under federal law.

The challenge basically argued that this structure was unconstitutional for many reasons. It argued that it was unconstitutional because Congress actually lacked the authority under Article I to enact this law. In other words, the idea was that ICWA exceeds Congress’s enumerated powers. Another challenge argued that ICWA was unconstitutional under the 10th Amendment because it commandeered state agencies. In other words, it forced state officials to do federal bidding. The plaintiffs also argued ICWA was unconstitutional because it discriminated on the basis of race and because it impermissibly delegated rule making authority to tribes.

You said in your Slate article that Brackeen doesn’t fully end that campaign against ICWA. Can you talk about that?

That’s right. The Court fully rejected the Article I and anti-commandeering arguments. But on the equal protection and non-delegation questions, the Court found that the plaintiffs lacked standing—that they basically sued the wrong people. They brought the case against federal officials, but the federal officials are not the ones who enforce the statute. It’s state officials who enforce the statute. And so, the argument is that if they want to argue that they’ve been harmed, they have to sue state, not federal officials.

Do you see this coming back to the Court again soon? 

Well, certainly the plaintiffs and the other forces behind the litigation are going to try to get the issue back. But I don’t see it happening soon because I don’t see the Court granting cert unless a lower court strikes ICWA down.  But I think the challengers will have a hard time finding such a court, in part because they just lost badly and in part because to win, they’d have to find a lower court willing to disregard—or at least very creatively distinguish away—long-standing and clear Supreme Court precedent.

Gregory Ablavsky’s scholarship focuses on early American legal history, particularly on issues of sovereignty, territory, and property in the early American West.  His publications explore a range of topics including the history of the Indian Commerce Clause, the importance of Indian affairs in shaping the U.S. Constitution, and the balance of power between states and the federal government. His book Federal Ground: Governing Property and Violence in the First U.S. Territories was published in 2021 by Oxford University Press.  His work has received the Cromwell Article Prize and the Kathryn T. Preyer Prize from the American Society for Legal History.