Resource Letter:

For Judges and Attorneys Handling Child Welfare Cases

June 30, 2023

U.S. Supreme Court Upholds the Indian Child Welfare Act

On June 15, 2023, the Supreme Court of the United States handed down a decision in the Haaland v. Brackeen case, No. 21-376, slip op. (U.S. June 15, 2023). In a 7-2 decision, the Court affirmed the constitutionality of the Indian Child Welfare Act (ICWA). Writing for the majority, Justice Barrett affirmed the Fifth Circuit Court of Appeal’s finding that Congress had constitutional authority to enact ICWA. The Court reversed the lower court’s ruling on the anti-commandeering challenge finding ICWA did not violate the 10th Amendment by unconstitutionally commandeering the State on the provisions of active efforts, placement preferences, and record keeping. With regards to the equal protection challenge and the non-delegation challenge, the Court declined to reach the merits of the claims finding none of the petitioners had standing. On these two challenges, the Court vacated the lower court’s judgement and remanded with instructions to dismiss for lack of jurisdiction. Justices Gorsuch and Kavanaugh wrote concurring opinions. Justices Thomas and Alito dissented.

For background on this case, please see the Children’s Commission’s past Resource Letters sent on July 1, 2021, August 21, 2019, December 7, 2018, and November 9, 2018.

Maintaining family and cultural connections is critical for all Texas children and youth in foster care. ICWA remains a vital tool for states and Tribes to use in partnership as they work to maintain such cultural connections for native children, youth, and families. For an overview of the importance of ICWA and key elements of the law, please review the recording and presentation slides from the 2021 ICWA Summit.  

Additionally, judges and attorneys may refer to ICWA chapters in the following Children’s Commission resources:

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For a complete list of Resource Letters, please visit the Children's Commission webpage. Information provided by the Children’s Commission should not be read as a commentary by the Supreme Court of Texas or any other court. The Children’s Commission website is not equipped to facilitate dialogue or conversation about matters related to the information in this communique. For more information about the Children’s Commission, please visit our website.