The Supreme Court's Big Indian Law Case

Race-based child placements remain (for now), but a favorable signal regarding affirmative action.

This morning, the Supreme Court decided Haaland v. Brackeen, a case that raised a conflict between the Indian Child Welfare Act and state family law. By a vote of 7-2, the justices affirmed ICWA’s constitutionality but declined to reach the more salient claims regarding race-based adoption rules.

This was a complicated case, both factually and legally, and it ends with a muddled and unfortunate decision. As Justice Barrett painstakingly explains in her majority opinion, the Indian Child Welfare Act “requires a state court to place an Indian child with an Indian caretaker . . . even if the child is already living with a non-Indian family and the state court thinks it in the child’s best interest to stay there.” The three custody disputes at the heart of Brackeen, as well as a brief that I filed at the cert stage of this case, illustrate the too-frequently-sad consequences of that law.