In a dissenting opinion in Haaland v. Brackeen, No. 21–376 (June 15, 2023), Associate Justice Clarence Thomas cited Principles of the Law, Family Dissolution: Analysis and Recommendations § 2.02 in arguing that Congress lacked the authority to enact the Indian Child Welfare Act, which compelled state courts to place American Indian children involved in custody proceedings with extended family members, other members of their tribe, or other American Indian tribes, even if doing so was not in the children’s best interests.

In three consolidated cases, non–American Indian prospective adoptive parents sought to adopt, with the approval of the children’s biological parents, minor children who fell within the definition of “Indian children” under the Indian Child Welfare Act and were unilaterally enrolled into tribal membership by American Indian tribes. State governments complied with provisions in the Act by placing the children with American Indian third parties. The prospective adoptive parents and biological parents filed suit against the United States, federal agencies, and federal officials, asserting, among other things, that Congress lacked constitutional authority to enact the Act. Texas intervened for the parents, while American Indian tribes intervened for the federal parties. The U.S. District Court for the Northern District of Texas granted the parents’ motion for summary judgment, concluding that Congress overstepped its powers in enacting the Act. After rehearing the case en banc, the U.S. Court of Appeals for the Fifth Circuit reversed in part, finding that the Act did not exceed Congress’s legislative power.

In an opinion delivered by Associate Justice Amy Coney Barrett, the U.S. Supreme Court declined to disturb the Fifth Circuit’s conclusion that the Act was consistent with Congress’s authority under Article I, holding that the Act did not impermissibly “tread[] on the [s]tates’ authority over family law,” explaining that “when Congress validly legislate[d] pursuant to its Article I powers,” the Court did not hesitate “to find conflicting state family law preempted.” The Court pointed to the Indian Commerce Clause as a source of Congressional authority, under which Congress could regulate commerce with American Indian tribes, noting that the Court had interpreted the clause “to reach not only trade, but certain ‘Indian affairs’ too,” including “criminal law [and] domestic violence.”

Associate Justice Clarence Thomas dissented, arguing that Congress did not have “unlimited power over Indian affairs” to intrude upon traditional state-law powers regulating the placement of adopted or foster children, particularly when, as in this case, those children were U.S citizens who did not reside on American Indian lands. Justice Thomas cited Principles of the Law, Family Dissolution: Analysis and Recommendations § 2.02 in illustrating traditional state-law standards on placing such children based on “the best interests of that child,” explaining that “children [were] some of the most vulnerable” in the population, and “their interests should be a court’s primary concern.” Congress’s authority had “clear, inherent limits,” Justice Thomas argued, and Congressional power under sources such as the Indian Commerce Clause should not be interpreted as a “free-floating, unlimited power over all things related to Indians.”

Find the full opinion here.


Seo Ho Lee

The American Law Institute


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