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Haaland v. Brackeen and Mancari: On History, Taking Children, and the Right-Wing Assault on Indigenous Sovereignty

Laura Briggs

In June 2023, the Supreme Court upheld the constitutionality of the Indian Child Welfare Act (ICWA) of 1978 in Haaland v. Brackeen, making it harder for (some) Indigenous families and communities to lose their children. The decision left one key question unanswered, however: whether protections specifically for American Indian households served as an illegitimate “racial” preference. Justice Amy Coney Barrett’s opinion for the majority argued that the petitioners lacked standing to raise this issue. Thus, the Court left the door open to continuing challenges by those who have an interest in using ICWA’s cute children and clean-cut evangelical Christian parents to try to put an end to this and all related statutes that give so-called “preferential treatment” to American Indians—including in gaming compacts, employment, federal treaties, and essentially all of Indian law. (more…)

Haaland v. Brackeen—A Window into Presenting Tribal Cases to the Court

Ian Heath Gershengorn

In this Essay, as I did at the Connecticut Law Review’s Symposium, I draw on my experience representing Tribes in Haaland v. Brackeen to discuss more broadly the effective presentation of tribal arguments to the Court. I touch briefly on four main topics. First, I discuss how we collaborated with amici to ensure that the Court would have the full context as it considered the issues in Brackeen. Second, I discuss how we thought about preparing for the argument and the particular importance of understanding the practical operation of the Indian Child Welfare Act. Third, I offer a few observations on the oral argument itself, focusing on how the structure of the argument influences the substance of the argument. And fourth, I step back and discuss why this is a particularly interesting and challenging time to argue Indian law cases before the Supreme Court. (more…)

Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience: The Connecticut Law Review Symposium

Casey M. Corvino & Julia R. Vassallo

In October 2023, the Connecticut Law Review hosted the Symposium “Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience.” The symposium was centered on the state of federal Indian law in the wake of the Brackeen decision. This decision was a victory for Indigenous families and Native nations as it left the Indian Child Welfare Act (ICWA) unscathed and affirmed the constitutional relationship between tribal nations and the United States. However, threats to tribal sovereignty continue as a handful of states and interest groups continue to seek ways to challenge tribal authority and federal laws that support it. (more…)

Nondelegation and Native Nations

Seth Davis

There is no nondelegation doctrine for Native nations, nor should there be one even if the Supreme Court revives the nondelegation doctrine for federal agencies and private parties. The Court has never struck down a statute on the ground that it delegated legislative power to a Native nation. Instead, it has held that Congress may recognize the sovereignty of Native nations and that their independent authority sustains statutes that rely upon Native governments to implement policy goals that they share with the United States. (more…)

The Original Meaning of Commerce in the Indian Commerce Clause

Gregory Ablavsky

In Haaland v. Brackeen, the Supreme Court returned to the foundational question of federal authority over relations between the United States and Native nations, long known as “Indian affairs.” The decision reaffirmed well-established precedent affirming broad federal authority in the area, but it also underscored ongoing disagreement, as Justices Gorsuch and Thomas offered lengthy and dueling investigations of the original understanding.

This Essay explores one aspect of that history: the original meaning of “commerce” in the Indian Commerce Clause. Nearly a decade ago, I wrote an article that sought, as its title indicated, to move “beyond the Indian Commerce Clause.” The Clause, I argued, was only one small component in how the early American political elite understood federal authority in this area. (more…)