# Haaland v. Brackeen/Opinion of Justice Alito

SUPREME COURT OF THE UNITED STATES
Nos. 21–376, 21–377, 21–378 and 21–380
DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS 21–376v.21–376 CHAD EVERET BRACKEEN, ET AL.
CHEROKEE NATION, ET AL., PETITIONERS 21–377v.21–377 CHAD EVERET BRACKEEN, ET AL.
TEXAS, PETITIONER 21–378v.21–378 DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.
CHAD EVERET BRACKEEN, ET AL., PETITIONERS 21–380v.21–380 DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 15, 2023]
Justice Alito, dissenting.
The first line in the Court’s opinion identifies what is most important about these cases: they are “about children who are among the most vulnerable.” Ante, at 1. But after that opening nod, the Court loses sight of this overriding concern and decides one question after another in a way that disserves the rights and interests of these children and ​their parents, as well as our Constitution’s division of federal and state authority.
Decisions about child custody, foster care, and adoption are core state functions. The paramount concern in these cases has long been the “best interests” of the children involved. See, e.g., 3 T. Zeller, Family Law and Practice §§32.06, 32.08 (2022); 6 id., §64.06. But in many cases, provisions of the Indian Child Welfare Act (ICWA) compel actions that conflict with this fundamental state policy, subordinating what family-court judges—and often biological parents—determine to be in the best interest of a child to what Congress believed is in the best interest of a tribe.
The cases involved in this litigation illustrate the distressing consequences. To its credit, the Court acknowledges what happened to these children, but its decision does nothing to prevent the repetition of similar events. Take A. L. M. His adoption by a loving non-Indian couple, with whom he had lived for over a year and had developed a strong emotional bond, was initially blocked even though it was supported by both of his biological parents, his grandmother, and the testimony of both his court-appointed guardian and a psychological expert. Because a Tribe objected, he would have been sent to an Indian couple that he did not know in another State had the non-Indian couple not sought and obtained an emergency judicial order.
Baby O.’s story is similar. A non-Indian couple welcomed Baby O. into their home when she was three days old and cared for her for more than two years while seeking to adopt her. The couple ensured that Baby O.’s serious medical needs were met and maintained regular visits with Baby O.’s biological mother so that Baby O. could have a continuing relationship with her biological family. Even though both biological parents supported the couple’s adoption of Baby O., a Tribe objected and sought to send Baby O. to live in foster care on a reservation in another State. Only after ​the couple joined this lawsuit did the Tribe agree to a settlement that would permit the couple to finalize the adoption.
After nearly two years moving between foster-care placements, Child P., whose maternal grandmother is a member of an Indian Tribe, was placed with a non-Indian couple who provided her a stable home. After the placement, the Tribe, which had told the state court years earlier that Child P. was not eligible for tribal membership, reversed its position without explanation and enrolled her as a member. The Tribe then objected to the couple’s efforts to adopt Child P., even though her court-appointed guardian believed that the adoption was in Child P.’s best interest. “To comply with the ICWA,” the state court removed Child P. from the couple’s custody and placed her with her maternal grandmother, “who had lost her foster license due to a criminal conviction.” Ante, at 8 (majority opinion).
Does the Constitution give Congress the authority to bring about such results? I would hold that it does not. Whatever authority Congress possesses in the area of Indian affairs, it does not have the power to sacrifice the best interests of vulnerable children to promote the interests of tribes in maintaining membership. Nor does Congress have the power to force state judges to disserve the best interests of children or the power to delegate to tribes the authority to force those judges to abide by the tribes’ priorities regarding adoption and foster-care placement.
I
The Court makes a valiant effort to bring coherence to what has been said in past cases about Congress’s power in this area, but its attempt falls short. At the end of a lengthy discussion, the majority distills only this nugget: Congress’s power over Indian affairs is “plenary” but not “absolute.” Ante, at 13–14. The majority in today’s cases did not coin this formulation; it merely repeats what earlier cases have ​said. See, e.g., Delaware Tribal Business Comm. v. Weeks, 430 U. S. 73, 84 (1977) (quoting United States v. Alcea Band of Tillamooks, 329 U. S. 40, 54 (1946) (plurality opinion)). But the formulation’s pedigree cannot make up for its vacuity. The term “plenary” is defined in one dictionary after another as “absolute.” See, e.g., New Oxford American Dictionary 1343 (3d ed. 2010); Webster’s Third New International Dictionary 1739 (2002); The Random House Dictionary of the English Language 1486 (2d ed. 1987). If we accept these definitions, what the Court says is that absolute ≠ absolute and plenary ≠ plenary, violating one of the most basic laws of logic. Surely we can do better than that.
We need not map the outer bounds of Congress’s Indian affairs authority to hold that the challenged provisions of ICWA lie outside it. We need only acknowledge that even so-called plenary powers cannot override foundational constitutional constraints. By attempting to control state judicial proceedings in a field long-recognized to be the virtually exclusive province of the States, ICWA violates the fundamental structure of our constitutional order.
In reaching this conclusion, I do not question the proposition that Congress has broad power to regulate Indian affairs. We have “consistently described” Congress’s “powers to legislate in respect to Indian tribes” as “ ‘plenary and exclusive.’ ” United States v. Lara, 541 U. S. 193, 200 (2004) (collecting cases). Reflecting this understanding, we have sanctioned a wide range of enactments that bear on Indian tribes and their members, sometimes (regrettably) without tracing the source of Congress’s authority to a particular enumerated power. See, e.g., Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56–58 (1978) (modifying tribal governments’ powers of self-government); Lone Wolf v. Hitchcock, 187 U. S. 553, 565–566 (1903) (transferring tribal land). Nor do I dispute the notion that Congress has undertaken responsibilities that have been roughly analogized to those ​of a trustee. In exercising its constitutionally-granted powers, the Federal Government, “following ‘a humane and self imposed policy,’ ” has committed itself to “ ‘moral obligations of the highest responsibility and trust’ ” to the Indian people. United States v. Jicarilla Apache Nation, 564 U. S. 162, 176 (2011).
Nevertheless, we have repeatedly cautioned that Congress’s Indian affairs power is not unbounded. And while we have articulated few limits, we have acknowledged what should be one obvious constraint: Congress’s authority to regulate Indian affairs is limited by other “pertinent constitutional restrictions” that circumscribe the legislative power. United States v. Creek Nation, 295 U. S. 103, 109–110 (1935); see also New York v. United States, 505 U. S. 144, 156 (1992) (“Congress exercises its conferred powers subject to the limitations contained in the Constitution”).
For example, in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), we held that Congress’s power under the Indian Commerce Clause was limited by “the background principle of state sovereign immunity embodied in the Eleventh Amendment.” Id., at 72. We rejected the Tribe’s argument that Congress’s Indian affairs power could exceed other constitutional restrictions when “necessary” to “ ‘protect the tribes’ ” from state interference. Id., at 60. Foundational constitutional principles like state sovereign immunity, we observed, are “not so ephemeral as to dissipate when the subject of the suit is [in] an area, like the regulation of Indian commerce, that is under the exclusive control ​of the Federal Government.” Id., at 72. Even when we have sustained legislation, we have cautioned against congressional overreach. See Lara, 541 U. S., at 203–205. We have suggested that a law may exceed Congress’s power to regulate Indian affairs if it has “an unusual legislative objective,” brings about “radical changes in tribal status,” or “interfere[s] with the power or authority of any State.” Ibid.
We have rarely had occasion to enforce these limits, in part because the enactments before us have often fallen comfortably within the historical bounds of Congress’s enumerated powers. See ante, at 33–38 (Thomas, J., dissenting). But that does not mean that we should shy away from enforcement when presented with a statute that exceeds what the Constitution allows.
II
Congress’s power in the area of Indian affairs cannot exceed the limits imposed by the “system of dual sovereignty between the States and the Federal Government” established by the Constitution. Gregory v. Ashcroft, 501 U. S. 452, 457 (1991). “The powers delegated … to the federal government are few and defined,” while “[t]hose which … remain in the State governments are numerous and indefinite.” The Federalist No. 45, p. 292 (C. Rossiter ed. 1961) (J. Madison). The powers retained by the States constitute “ ‘a residuary and inviolable sovereignty,’ ” secure against federal intrusion. Printz v. United States, 521 U. S. 898, 919 (1997) (quoting The Federalist No. 39, at 245 (J. Madison)). This structural principle, reinforced in the Tenth Amendment, “confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States.” New York, 505 U. S., at 157. The corollary is also true: in some circumstances, the powers reserved to the States inform the scope of Congress’s power. Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___ (2018) (slip op., at 15). This includes in the ​area of Indian affairs. Dick v. United States, 208 U. S. 340, 353 (1908) (Congress’s primacy over Indian tribes and States’ “full and complete jurisdiction over all persons and things within [their] limits” are “fundamental principles … of equal dignity, and neither must be so enforced as to nullify or substantially impair the other”).
While we have never comprehensively enumerated the States’ reserved powers, we have long recognized that governance of family relations—including marriage relationships and child custody—is among them. It is not merely that these matters “have traditionally been governed by state law” or that the responsibility over them “remains primarily with the States,” ante, at 14 (majority opinion), but that the field of domestic relations “has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa, 419 U. S. 393, 404 (1975) (emphasis added). “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States, and not to the laws of the United States.” In re Burrus, 136 U. S. 586, 593–594 (1890). “Cases decided by this Court over a period of more than a century bear witness to this historical fact.” Sosna, 419 U. S., at 404. See, e.g., United States v. Windsor, 570 U. S. 744, 766 (2013); McCarty v. McCarty, 453 U. S. 210, 220 (1981); Simms v. Simms, 175 U. S. 162, 167 (1899); Pennoyer v. Neff, 95 U. S. 714, 722, 734–735 (1878).
This does not mean that federal law may never touch on family matters. As the majority observes, ante, at 14, we have held that federal legislation that regulates certain “economic aspects of domestic relations” can preempt conflicting state law. Ridgway v. Ridgway, 454 U. S. 46, 55–56 (1981) (providing an order of precedence for beneficiaries of a service member’s life insurance policy); see, e.g., Hillman v. Maretta, 569 U. S. 483, 485–486 (2013) (allocating federal death benefits); McCarty, 453 U. S., at 211, 235–236 (allocating military retirement pay). But we have never ​held that Congress under any of its enumerated powers may regulate the very nature of those relations or dictate their creation, dissolution, or modification. Nor could we and remain faithful to our founding. “No one denies that the States, at the time of the adoption of the Constitution, possessed full power over” ordinary family relations; and “the Constitution delegated no authority to the Government of the United States” in this area. Haddock v. Haddock, 201 U. S. 562, 575 (1906). It is a “most important aspect of our federalism” that “the domestic relations of husband and wife”—and parent and child—are “matters reserved to the States and do not belong to the United States.” Williams v. North Carolina, 325 U. S. 226, 233 (1945) (internal quotation marks and citation omitted).
As part of that reserved power, state courts have resolved child custody matters arising among state citizens since the earliest days of the Nation. See, e.g., Nickols v. Giles, 2 Root 461, 461–462 (Conn. Super. Ct. 1796) (declining to remove daughter from mother’s care); Wright v. Wright, 2 Mass. 109, 110–111 (1806) (awarding custody of child to mother following divorce); Commonwealth v. Nutt, 1 Browne 143, 145 (Pa. Ct. Common Pleas 1810) (assigning custody of child to her sister). Then, as now, state courts’ overriding concern was the best interests of the children. See, e.g., Commonwealth v. Addicks, 5 Binn. 520, 521 (Pa. 1813) (court’s “anxiety is principally directed” to the child’s welfare); In re Waldron, 13 Johns. Cas. 418, 421 (N. Y. Sup. Ct. 1816) (court is “principally to be directed” by “the benefit and the welfare” of the child). By the mid-19th century, States had begun enacting statutory adoption schemes, enforceable through state courts, “to provide for the welfare of dependent children,” starting with Massachusetts in 1851. S. Presser, The Historical Background of the American Law of Adoption, 11 J. Fam. L. 443, 453, 465 (1971) (Presser); 1851 Mass. Acts ch. 324. Over the next 25 years, 23 other States followed suit. Presser 465–466, and nn. 111, 112. As ​the cases before us attest, this historic tradition of state oversight of child custody and welfare through state judicial proceedings continues to the present day.
The ICWA provisions challenged here do not simply run up against this traditional state authority, they run roughshod over it when the State seeks to protect one of its young citizens who also happens to be a member of an Indian tribe or who is the biological child of a member and eligible for tribal membership, herself. 25 U. S. C. §1903(4). In those circumstances, ICWA requires a State to abandon the carefully-considered judicial procedures and standards it has established to provide for a child’s welfare and instead apply a scheme devised by Congress that focuses not solely on the best interest of the child, but also on “the stability and security of Indian tribes.” §1902. That scheme requires States to invite tribal authorities with no existing relationship to a child to intervene in judicial custody proceedings, §§1911(c), 1912(a), 1914. It requires States to replace their reasoned standards for termination of parental rights and placement in foster care with standards that favor the interests of an Indian custodian over those of the child. §§1912(e), (f). It forces state courts to give Indian couples (even those of different tribes) priority in adoption and foster-care placements, even over a non-Indian couple who would better serve a child’s emotional and other needs. §§1915(a), (b). And it requires state judges to subordinate the State’s typical custodial considerations to a tribe’s alternative preference. §1915(c).
It is worth underscoring that ICWA’s directives apply even when the child is not a member of a tribe and has never been involved in tribal life, and even when a child’s biological parents object. As seen in the cases before us, the sad consequence is that ICWA’s provisions may delay or prevent a child’s adoption by a family ready to provide her a permanent home.
ICWA’s mandates do not simply touch on family matters. ​They override States’ authority to determine—and implement through their courts—the child custody and welfare policies they deem most appropriate for their citizens. And in doing so, the mandates harm vulnerable children and their parents. In my view, the Constitution cannot countenance this result. The guarantee of dual sovereignty embodied in the constitutional structure “is not so ephemeral as to dissipate” simply because Congress invoked a so-called plenary power. Seminole Tribe of Fla., 517 U. S., at 72. The challenged ICWA provisions effectively “nullify” a State’s authority to conduct state child custody proceedings in accordance with its own preferred family relations policies, a prerogative that States have exercised for centuries. Dick, 208 U. S., at 353. Congress’s Indian affairs power, broad as it is, does not extend that far.
The indicators we previously identified also signal that ICWA exceeds Congress’s constitutional bounds. See Lara, 541 U. S., at 203–205. First, the law has “an unusual legislative objective.” Id., at 203. ICWA’s attempt to control local judicial proceedings in a core field of state concern departs significantly from other Indian affairs legislation that we have sanctioned—laws that typically regulated actual commerce, related to tribal lands and governance, or fulfilled treaty obligations. See ante, at 33–38 (Thomas, J., dissenting). Second, the law brings about “radical changes in tribal status,” effectively granting tribes veto power over ​state judgments regarding the welfare of resident Indian children. Lara, 541 U. S., at 205. And third, the law “interfere[s] with the power [and] authority of [every] State” in the conduct of state judicial proceedings and determination of child custody arrangements. Ibid. That is, in fact, its express design. See, e.g., §§1911(c), 1912, 1915. These indicators confirm that ICWA surpasses even a generous understanding of Congress’s Indian affairs authority. *** I am sympathetic to the challenges that tribes face in maintaining membership and preserving their cultures. And I do not question the idea that the best interests of children may in some circumstances take into account a desire to enable children to maintain a connection with the culture of their ancestors. The Constitution provides Congress with many means for promoting such interests. But the Constitution does not permit Congress to displace long-exercised state authority over child custody proceedings to advance those interests at the expense of vulnerable children and their families.
Because I would hold that Congress lacked authority to enact the challenged ICWA provisions, I respectfully dissent.
* ↑ The state of affairs on many Indian reservations, however, does not speak well of the way in which these duties have been discharged by this putative trustee. See, e.g., U. S. Commission on Civil Rights, Broken Promises: Continuing Federal Funding Shortfall for Native Americans 102–107, 135–138, 156–157, 165–166 (Dec. 2018) (discussing poor performance of students in tribal schools, substandard housing and physical infrastructure on reservations, and high rates of unemployment among Indians living on reservations).
* ↑ Because ICWA’s provisions comprise a comprehensive child custody scheme relevant only to state court proceedings, I generally do not believe they can be severed without engaging in “quintessentially legislative work.” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006). An exception is §1911(a), which gives Indian tribes exclusive jurisdiction over child custody proceedings involving Indian children living within a reservation; that section is not implicated by my analysis. See also Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 383, 388–389 (1976) (per curiam) (recognizing exclusive tribal court jurisdiction over adoption proceedings, where all parties are members of a tribe living on a reservation).