Haaland v. Brackeen

by Supreme Court of the United States

Note: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

HAALAND, SECRETARY OF THE INTERIOR, ET AL. v. BRACKEEN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 21–376. Argued November 9, 2022—Decided June 15, 2023^[1]

This case arises from three separate child custody proceedings governed by the Indian Child Welfare Act (ICWA), a federal statute that aims to keep Indian children connected to Indian families. ICWA governs state court adoption and foster care proceedings involving Indian children. Among other things, the Act requires placement of an Indian child according to the Act’s hierarchical preferences, unless the state court finds “good cause” to depart from them. 25 U. S. C. §§1915(a), (b). Under those preferences, 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. Further, the child’s tribe may pass a resolution altering the prioritization order. §1915(c). The preferences of the Indian child or her parent generally cannot trump those set by statute or tribal resolution.

In involuntary proceedings, the Act mandates that the Indian child’s parent or custodian and tribe be given notice of any custody proceedings, as well as the right to intervene. §§1912(a), (b), (c). Section 1912(d) 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 and rehabilitative programs designed to prevent breakup of the Indian family,” and 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 emotional or physical damage” if the parent or Indian custodian retains custody. §§1912(d), (e). Even for voluntary proceedings, a biological parent who gives up an Indian child cannot necessarily choose the child’s foster or adoptive parents. The child’s tribe has “a right to intervene at any point in [a] proceeding” to place a child in foster care or terminate parental rights, as well as a right to collaterally attack the state court’s custody decree. §§1911(c), 1914. The tribe thus can sometimes enforce ICWA’s placement preferences against the wishes of one or both biological parents, even after the child is living with a new family. Finally, the States must keep certain records related to child placements, see §1915(e), and transmit to the Secretary of the Interior all final adoption decrees and other specified information, see §1951(a).

Petitioners—a birth mother, foster and adoptive parents, and the State of Texas—filed this suit in federal court against the United States and other federal parties. Several Indian Tribes intervened to defend the law alongside the federal parties. Petitioners challenged ICWA as unconstitutional on multiple grounds. They asserted that Congress lacks authority to enact ICWA and that several of ICWA’s requirements violate the anticommandeering principle of the Tenth Amendment. They argued that ICWA employs racial classifications that unlawfully hinder non-Indian families from fostering or adopting Indian children. And they challenged §1915(c)—the provision that allows tribes to alter the prioritization order—on the ground that it violates the nondelegation doctrine.

The District Court granted petitioners’ motion for summary judgment on their constitutional claims, and the en banc Fifth Circuit affirmed in part and reversed in part. The Fifth Circuit concluded that ICWA does not exceed Congress’s legislative power, that §1915(c) does not violate the nondelegation doctrine, and that some of ICWA’s placement preferences satisfy the guarantee of equal protection. The Fifth Circuit was evenly divided as to whether ICWA’s other preferences—those prioritizing “other Indian families” and “Indian foster home[s]” over non-Indian families—unconstitutionally discriminate on the basis of race, and thus affirmed the District Court’s ruling that these preferences are unconstitutional. As to petitioners’ Tenth Amendment arguments, the Fifth Circuit held that §1912(d)’s “active efforts” requirement, §1912(e)’s and §1912(f)’s expert witness requirements, and §1915(e)’s recordkeeping requirement unconstitutionally commandeer the States. And because it divided evenly with respect to other challenged provisions (§1912(a)’s notice requirement, §1915(a) and §1915(b)’s placement preferences, and §1951(a)’s recordkeeping requirement), the Fifth Circuit affirmed the District Court’s holding that these requirements violate the Tenth Amendment.

Held:

1. The Court declines to disturb the Fifth Circuit’s conclusion that ICWA is consistent with Congress’s Article I authority. Pp. 10–17.

(a) The Court has characterized Congress’s power to legislate with respect to the Indian tribes as “plenary and exclusive,” United States v. Lara, 541 U. S. 193, 200, superseding both tribal and state authority, Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56. The Court has traced that power to multiple sources. First, the Indian Commerce Clause authorizes Congress “[t]o regulate Commerce … with the Indian Tribes,” U. S. Const., Art. I, §8, cl. 3, and the Court has interpreted the Indian Commerce Clause to reach not only trade, but also certain “Indian affairs,” Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192. The Treaty Clause provides a second source of power. The treaty power “does not literally authorize Congress to act legislatively,” since it is housed in Article II, but “treaties made pursuant to that power can authorize Congress to deal with ‘matters’ with which otherwise ‘Congress could not deal.’ ” Lara, 541 U. S., at 201. Also, principles inherent in the Constitution’s structure may empower Congress to act in the field of Indian affairs. See Morton v. Mancari, 417 U. S. 535, 551–552. Finally, the “trust relationship between the United States and the Indian people” informs the exercise of legislative power. United States v. Mitchell, 463 U. S. 206, 225–226. In sum, Congress’s power to legislate with respect to Indians is well established and broad, but it is not unbounded. It is plenary within its sphere, but even a sizeable sphere has borders. Pp. 10–14.

(b) Petitioners contend that ICWA impermissibly treads on the States’ traditional authority over family law. But when Congress validly legislates pursuant to its Article I powers, the Court “has not hesitated” to find conflicting state family law preempted, “[n]otwithstanding the limited application of federal law in the field of domestic relations generally.” Ridgway v. Ridgway, 454 U. S. 46, 54. And the Court has recognized Congress’s power to displace the jurisdiction of state courts in adoption proceedings involving Indian children. Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 390 (per curiam). Pp. 14–15.

(c) Petitioners contend that no source of congressional authority authorizes Congress to regulate custody proceedings for Indian children. They suggest that the Indian Commerce Clause, for example, authorizes Congress to legislate only with respect to Indian tribes as government entities, not Indians as individuals. But this Court’s holding more than a century ago that “commerce with the Indian tribes, means commerce with the individuals composing those tribes,” United States v. Holliday, 3 Wall. 407, 417, renders that argument a dead end. Petitioners also assert that ICWA takes the “commerce” out of the Indian Commerce Clause because “children are not commodities that can be traded.” Brief for Individual Petitioners 16. This point, while rhetorically powerful, ignores the Court’s precedent interpreting the Indian Commerce Clause to encompass not only trade but also other Indian affairs. Petitioners next argue that ICWA cannot be authorized by principles inherent in the Constitution’s structure because those principles “extend, at most, to matters of war and peace.” Brief for Petitioner Texas 28. Again, petitioners make no argument that takes this Court’s cases on their own terms. The Court has referred generally to the powers “necessarily inherent in any Federal Government” and has offered non-military examples, such as “creating departments of Indian affairs.” Lara, 541 U. S., at 201–202. Petitioners next observe that ICWA does not implement a federal treaty, but Congress did not purport to enact ICWA pursuant to its treaty power and the Fifth Circuit did not uphold ICWA on that rationale. Finally, petitioners turn to criticizing this Court’s precedent as inconsistent with the Constitution’s original meaning, but they neither ask the Court to overrule the precedent they criticize nor try to reconcile their approach with it. If there are arguments that ICWA exceeds Congress’s authority as precedent stands today, petitioners do not make them here. Pp. 15–17.

2. Petitioners’ anticommandeering challenges, which address three categories of ICWA provisions, are rejected. Pp. 18–29.

(a) First, petitioners challenge certain requirements that apply in involuntary proceedings to place a child in foster care or terminate parental rights, focusing on the requirement that an initiating party demonstrate “active efforts” to keep the Indian family together. §1912(d). Petitioners contend this subsection directs state and local agencies to provide extensive services to the parents of Indian children, even though it is well established that the Tenth Amendment bars Congress from “command[ing] the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz v. United States, 521 U. S. 898, 935. To succeed, petitioners must show that §1912(d) harnesses a State’s legislative or executive authority. But the provision applies to “any party” who initiates an involuntary proceeding, thus sweeping in private individuals and agencies as well as government entities. A demand that either public or private actors can satisfy is unlikely to require the use of sovereign power. Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___–___. Petitioners nonetheless insist that States institute the vast majority of involuntary proceedings. But examples of private suits are not hard to find. And while petitioners treat “active efforts” as synonymous with “government programs,” state courts have applied the “active efforts” requirement in private suits too. That is consistent with ICWA’s findings, which describe the role that both public and private actors played in the unjust separation of Indian children from their families and tribes. §1901. Given all this, it is implausible that §1912(d) is directed primarily, much less exclusively, at the States.

Legislation that applies “evenhandedly” to state and private actors does not typically implicate the Tenth Amendment. Murphy, 584 U. S., at ___. Petitioners would distinguish the Court’s precedents so holding on the grounds that those cases addressed laws regulating a State’s commercial activity, while ICWA regulates a State’s “core sovereign function of protecting the health and safety of children within its borders.” Brief for Petitioner Texas 66. This argument is presumably directed at situations in which only the State can rescue a child from neglectful parents. But the State is not necessarily the only option for rescue, and §1912(d) applies to other types of proceedings too. Petitioners do not distinguish between these varied situations, much less isolate a domain in which only the State can act. If there is a core of involuntary proceedings committed exclusively to the sovereign, Texas neither identifies its contours nor explains what §1912(d) requires of a State in that context. Petitioners have therefore failed to show that the “active efforts” requirement commands the States to deploy their executive or legislative power to implement federal Indian policy. And as for petitioners’ challenges to other provisions of §1912—the notice requirement, expert witness requirement, and evidentiary standards—the Court doubts that requirements placed on a State as litigant implicate the Tenth Amendment. But regardless, these provisions, like §1912(d), apply to both private and state actors, so they too pose no anticommandeering problem. Pp. 18–23.

(b) Petitioners next challenge ICWA’s placement preferences, set forth in §1915. Petitioners assert that this provision orders state agencies to perform a “diligent search” for placements that satisfy ICWA’s hierarchy. Just as Congress cannot compel state officials to search databases to determine the lawfulness of gun sales, Printz, 521 U. S., at 902–904, petitioners argue, Congress cannot compel state officials to search for a federally preferred placement. As with §1912, petitioners have not shown that the “diligent search” requirement, which applies to both private and public parties, demands the use of state sovereign authority. Moreover, §1915 does not require anyone, much less the States, to search for alternative placements; instead, the burden is on the tribe or other objecting party to produce a higher-ranked placement. Adoptive Couple v. Baby Girl, 570 U. S. 637, 654. So, as it stands, petitioners assert an anticommandeering challenge to a provision that does not command state agencies to do anything.

State courts are a different matter. ICWA indisputably requires them to apply the placement preferences in making custody determinations. §§1915(a), (b). But Congress can require state courts, unlike state executives and legislatures, to enforce federal law. See New York v. United States, 505 U. S. 144, 178–179. Petitioners draw a distinction between requiring state courts to entertain federal causes of action and requiring them to apply federal law to state causes of action, but this argument runs counter to the Supremacy Clause. When Congress enacts a valid statute, “state law is naturally preempted to the extent of any conflict with a federal statute.” Crosby v. National Foreign Trade Council, 530 U. S. 363, 372. That a federal law modifies a state law cause of action does not limit its preemptive effect. See, e.g., Hillman v. Maretta, 569 U. S. 483, 493–494 (federal law establishing order of precedence for life insurance beneficiaries preempted state law). Pp. 23–25.

(c) Finally, petitioners insist that Congress cannot force state courts to maintain or transmit records of custody proceedings involving Indian children. But the anticommandeering doctrine applies “distinctively” to a state court’s adjudicative responsibilities. Printz, 521 U. S., at 907. The Constitution allows Congress to require “state judges to enforce federal prescriptions, insofar as those prescriptions relat[e] to matters appropriate for the judicial power.” Ibid. (emphasis deleted). In Printz, the Court indicated that this principle may extend to tasks that are “ancillary” to a “quintessentially adjudicative task”—such as “recording, registering, and certifying” documents. Id., at 908, n. 2. Printz described numerous historical examples of Congress imposing recordkeeping and reporting requirements on state courts. These early congressional enactments demonstrate that the Constitution does not prohibit the Federal Government from imposing adjudicative tasks on state courts. Bowsher v. Synar, 478 U. S. 714, 723. The Court now confirms what Printz suggested: Congress may impose ancillary recordkeeping requirements related to state-court proceedings without violating the Tenth Amendment. Here, ICWA’s recordkeeping requirements are comparable to the historical examples. The duties ICWA imposes are “ancillary” to the state court’s obligation to conduct child custody proceedings in compliance with ICWA. Printz, 521 U. S., at 908, n. 2. Pp. 25–29.

3. The Court does not reach the merits of petitioners’ two additional claims—an equal protection challenge to ICWA’s placement preferences and a nondelegation challenge to §1915(c), the provision allowing tribes to alter the placement preferences—because no party before the Court has standing to raise them. Pp. 29–34.

(a) The individual petitioners argue that ICWA’s hierarchy of preferences injures them by placing them on unequal footing with Indian parents who seek to adopt or foster an Indian child. But the individual petitioners have not shown that this injury is “likely” to be “redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U. S. ___, ___. They seek an injunction preventing the federal parties from enforcing ICWA and a declaratory judgment that the challenged provisions are unconstitutional. Yet enjoining the federal parties would not remedy the alleged injury, because state courts apply the placement preferences, and state agencies carry out the court-ordered placements. §§1903(1), 1915(a), (b). The state officials who implement ICWA are “not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 569 (plurality opinion). Petitioners’ request for a declaratory judgment suffers from the same flaw. The individual petitioners insist that state courts are likely to defer to a federal court’s interpretation of federal law, thus giving rise to a substantial likelihood that a favorable judgment will redress their injury. But such a theory would mean redressability would be satisfied whenever a decision might persuade actors who are not before the court—contrary to Article III’s strict prohibition on “issuing advisory opinions.” Carney v. Adams, 592 U. S. ___, ___. It is a federal court’s judgment, not its opinion, that remedies an injury. The individual petitioners can hope for nothing more than an opinion, so they cannot satisfy Article III. Pp. 29–32.

(b) Texas has no equal protection rights of its own, South Carolina v. Katzenbach, 383 U. S. 301, 323, and it cannot assert equal protection claims on behalf of its citizens against the Federal Government, Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 610, n. 16. The State’s creative arguments for why it has standing despite these settled rules also fail. Texas’s argument that ICWA requires it to “break its promise to its citizens that it will be colorblind in child-custody proceedings,” Reply Brief for Texas 15, is not the kind of “concrete” and “particularized” “invasion of a legally protected interest” necessary to demonstrate an injury in fact, Lujan, 504 U. S., at 560. Texas also claims a direct pocketbook injury associated with the costs of keeping records, providing notice in involuntary proceedings, and producing expert testimony before moving a child to foster care or terminating parental rights. But these alleged costs are not “fairly traceable” to the placement preferences, which “operate independently” of the provisions Texas identifies. California v. Texas, 593 U. S. ___, ___. Texas would continue to incur the complained-of costs even if it were relieved of the duty to apply the placement preferences. Because Texas is not injured by the placement preferences, neither would it be injured by a tribal resolution that altered those preferences pursuant to §1915(c). Texas therefore does not have standing to bring either its equal protection or its nondelegation claims. And although the individual petitioners join Texas’s nondelegation challenge to §1915(c), they raise no independent arguments about why they would have standing to bring this claim. Pp. 32–34.

994 F. 3d 249, affirmed in part, reversed in part, vacated and remanded in part.

Barrett, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor, Kagan, Gorsuch, Kavanaugh, and Jackson, JJ., joined. Gorsuch, J., filed a concurring opinion, in which Sotomayor and Jackson, JJ., joined as to Parts I and III. Kavanaugh, J., filed a concurring opinion. Thomas, J., and Alito, J., filed dissenting opinions.

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1. *Together with No. 21–377, Cherokee Nation et al. v. Brackeen et al., No. 21–378, Texas v. Haaland, Secretary of the Interior, et al., and No. 21–380, Brackeen et al. v. Haaland, Secretary of the Interior, et al., also on certiorari to the same court.

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