The issue in the Brackeen case is whether the Indian Child Welfare Act (ICWA) is constitutional. Some observers are fearful the Supreme Court will use the case to attack the notion of “tribal sovereignty” by applying “race theory” to characterize Indigenous peoples, in contrast to an approach that sees Indigenous peoples as “political” entities quasi-separate from the US. A racial approach would collapse Native peoples into groups of Native persons within the US polity.

The effort to bring about a collapse of Indigenous independent existence has been long underway. Indeed, this effort begins with the first Supreme Court decisions in the field — the so-called “Marshall trilogy,” named after the chief justice who authored the opinions. A doctrinal matrix of federal anti-Indian law domination was laid down in these three early nineteenth-century cases.

The decisions may be restated succinctly: In Johnson v. McIntosh, the court adopted the fifteenth-century doctrine of “Christian discovery” and declared that the United States holds title to all Native lands. It said that the Natives themselves are merely occupants. In Cherokee Nation v. State of Georgia, the court built on the Johnson decision to define Native Nations as “wards” under the control of a US “guardian”. It denied that Native Nations have an international status. In Worcester v. Georgia, the court capped the previous two decisions with an assertion that the federal government has supreme power vis-a-vis the states over Native lands and peoples. It defined a domain of “internal affairs” of Native nations for “their self-government so far as respected themselves only” under “exclusive” federal control of lands.

These three decisions continue to be cited in “federal Indian law” cases at all levels of the U.S. judicial system. Their anti-Indian orientations are, however, submerged in widespread wishful thinking that John Marshall somehow crafted a set of doctrines to “protect” Indigenous peoples against the US by declaring the US a “trustee” for them. As I make clear in my recent book: Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Praeger – ABC-CLIO, 2002), the so-called “trust doctrine” is a perversion of normal trust law. It operates as a massive “exception” to the ordinary rules governing trust relationships. “Exception” in fact characterizes all the doctrines in the field.

The fracturing of the Fifth Circuit Court of Appeals in its effort to decide Brakeen in 2021 demonstrates the deep confusion and contradiction (some say schizophrenia) that characterize the application of these fundamentally anti-Indigenous doctrines in their disguise as “federal protection”.

Sixteen circuit judges, two short of the entire bench, issued a total of 325 pages of conflicting and overlapping opinions trying to decide a case about the constitutionality of the Indian Child Welfare Act and the validity of implementing regulations promulgated by the Bureau of Indian Affairs. A narrow area of agreement produced an en banc majority for a limited range of issues, beyond which was judicial chaos. The chaos is demonstrated by a list of how the judges divided along the two principal opinions.

Judge Dennis’ opinion said:

…ICWA also falls within Congress’s “plenary powers to legislate on the problems of Indians” in order to fulfill its enduring trust obligations to the tribes. …Indeed, the congressional findings in the statute expressly invoke this “responsibility for the protection and preservation of Indian tribes and their resources” and state “that the United States has a direct interest, as trustee, in protecting Indian children.” …. The law was intended to combat an evil threatening the very existence of tribal communities, and it would be difficult to conceive of federal legislation that is more clearly aimed at the Government’s enduring trust obligations to the tribes. Moreover, it fulfills the government’s duty to protect the tribes from the states by regulating relations between the two—a power that the Framers specifically intended that the Constitution bestow on the federal government….(“The central policy … was one of separating Indians and non-Indians and subjecting nearly all interaction between the two groups to federal control.”)

Brackeen v. Haaland, 994 F.3d 249, 305–06 (5th Cir. 2021), cert. granted sub nom. Nation v. Brackeen, 212 L. Ed. 2d 215, 142 S. Ct. 1204 (2022), and cert. granted, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022), and cert. granted, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022)

Judge Duncan’s opinion said:

…the question before us… is whether Congress may use its Indian affairs power to regulate a state’s own child-custody proceedings. As already observed, the fact that Congress’s power goes beyond regulating tribal trade begs the question whether it allows Congress to regulate state governments. Also beside the point is the fact that Congress’s power was intended to exclude state authority over tribes. This prevented states from, for instance, nullifying federal treaties securing Indian lands. That evidence would be relevant if the issue were whether ICWA could exclude state courts from adoptions involving tribe members. … But ICWA presents the opposite scenario: it seeks to force federal and tribal standards into state proceedings. Amici point us to no founding-era evidence even suggesting Congress thought its Indian affairs power extended that far. The most pertinent example of Indian legislation from the first Congress—the Trade and Intercourse Act—addresses various aspects of the federal government’s relationship with Indians. It says nothing about regulating a state’s own proceedings that involve Indians.

Brackeen v. Haaland, 994 F.3d 249, 385–86 (5th Cir. 2021), cert. granted sub nom. Nation v. Brackeen, 212 L. Ed. 2d 215, 142 S. Ct. 1204 (2022), and cert. granted, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022), and cert. granted, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022)

Neither of these opinions garnered a majority. As I discuss in my book, the splits among the judges is a sign of deep crisis (and chaos) in the field. Following is the breakdown of joinders for the two principal opinions; once you see the crazy-quilt of intersecting legal arguments and doctrines, feel free to skip ahead:

Joinders to the Dennis opinion:

James L. Dennis, Circuit Judge; Judges Stewart and Graves join this opinion in full. Judges Wiener, Higginson, and Costa join all except Discussion Part I.A.2 (standing to bring equal protection claims other than the challenges to 25 U.S.C. §§ 1913-14).

Chief Judge Owen joins Discussion Parts I.A.1 (standing to challenge §§ 1913-14), I.C (standing to bring anticommandeering claims), II.A.2.a.1 (anticommandeering challenge to §§ 1912(e)-(f) and 1915(a)-(b) as they pertain to state courts), and II.C (nondelegation). She further joins Discussion Part I.D (standing to bring nondelegation claim) except as to the final sentence. See infra Owen, Chief Judge, Op.

Judge Southwick joins Discussion Parts I.A.1 (standing to challenge §§ 1913-14), II.A.1 (Congress’s Article I authority), II.B (equal protection), and II.C (nondelegation). He further joins in-part Discussion Parts II.A.2 (anticommandeering) and II.D (APA challenge to the Final Rule), disagreeing to the extent the analyses pertains to § 1912(d)-(f) and the regulations that implement those provisions.

Judge Haynes has expressed her partial concurrence in her separate opinion. See infra Haynes, Circuit Judge, Op.

Joinders to the Duncan opinion:

Stuart Kyle Duncan, Circuit Judge; Judges Smith, Elrod, Willett, Engelhardt, and Oldham join Judge Duncan’s opinion in full. Judge Jones joins all except Parts III(A)(2) (equal protection as to “Indian child”) and that portion of Part III(B)(2)(a) concerning preemption by the appointed counsel provision in 25 U.S.C. § 1912(d).

Chief Judge Owen joins Part III(B) (anti-commandeering/preemption) and Part III(D)(3) (“good cause” standard in 25 C.F.R. § 23.132(b) violates APA). See infra Owen, C.J., concurring in part and dissenting in part.

Judge Southwick joins Parts III(B)(1)(a)(i)–(ii) (anti-commandeering as to § 1912(d)–(f)); Part III(B)(2)(a) (preemption); Part III(B)(2)(b) (in part) (no preemption, only as to § 1912(d)–(f)); Part III(B)(2)(c) (in part) (preemption, except as to the discussion of § 1951(a)); and Part III(D)(1) (in part) (Final Rule violates APA to extent it implements § 1912(d)–(f)).

Judge Haynes joins Part I (standing); Part III(A)(3) (equal protection as to “other Indian families”); Parts III(B)(1)(a)(i), III(B)(1)(a)(iv), III(B)(1)(a)(ii) (in part), III(B)(1)(b) (in part), and III(B)(2)(b) (in part) (anti-commandeering/preemption as to §§ 1912(d)–(e) and 1915(e)); Part III(D)(1) (in part) (Final Rule violates APA to extent it implements provisions found unconstitutional in those portions of Parts III(A) and (B) that Judge Haynes joins); and Part III(D)(3) (“good cause” standard in 25 C.F.R. § 23.132(b) fails at Chevron step one). See infra Haynes, J., concurring.

As to what the Supreme Court may do in Brackeen, my book discusses a 5th amendment theory they might use to say that ICWA is “not tied rationally” to Congress’ “unique obligation toward the Indians”:

In United States v. Alcea Band of Tillamooks (1946), the Court said, “The power of Congress over Indian affairs may be of a plenary nature but it is not absolute.” That line was quoted in Delaware Tribal Business Committee v. Weeks (1977), when the Court said that it would “scrutiniz[e] Indian legislation to determine whether it violates the equal protection component of the Fifth Amendment.”

As Robert Miller put it, the Delaware Tribal Business decision called for “the lowest level of judicial constitutional review—rational basis review.” He added, “Notwithstanding that level of judicial review . . . no act of Congress has ever been overturned for exceeding its plenary power in the Indian law arena.” {Robert J. Miller, “The Doctrine of Discovery in American Indian Law,” Idaho Law Review 42, no. 1 (2005): 105.} This is not surprising because, to the extent that the Alcea language survived …, the Delaware Tribal Business decision made clear that the supposed constitutional limit on plenary power, the “special treatment” of Native peoples, is tied to the plenary power exception itself—“Congress’ unique obligations”!

Federal Anti-Indian Law, p. 82.

Using the Delaware Tribal Business language in Bracken would limit the supposed ‘plenary power’ of Congress not as against ’tribes,’ but as against states in relation to tribes. This is complex, but certainly no more so than other convolutions that make up the field.  

If the Supreme Court does dive into race theories in Brackeen rather than limiting itself to a discussion of the extent of ‘plenary power’, the decision may finally break the illusion in the field that ’trust doctrine’ means anything other than a mask for the federal domination of Indigenous peoples. That could have a salutary effect equivalent to Thurgood Marshall’s realization that “separate but equal” was a malicious doctrine, not designed for “the promotion of … comfort and the preservation of the public peace and good order,” as it was characterized in Plessy v. Ferguson.

A comparable realization of the maliciousness of federal anti-Indian law will support challenges to “plenary power,” “trust,” and related doctrines rooted in the doctrine of “Christian discovery” established in the Marshall trilogy. Such challenges have been made. The 2019 Yakama Nation amicus brief in Washington State Department of Licensing v. Cougar Den, Inc., is a major example. The Yakama attacked the Christian discovery premise of federal anti-Indian law that underlay Washington’s position and was also defended by the United States in an amicus on behalf of the state. (So much for the “trust” relationship!) The Yakama brief said that Washington’s legal arguments were based on “the religious, racist, genocidal, fabricated doctrine of Christian discovery”:

Under that doctrine, this Court judicially manufactured an extra-constitutional congressional plenary authority to abrogate treaties and regulate Native Nations. This manufactured authority rests on the false assertion that our sovereignty and free and independent existence were “necessarily diminished” upon Christian European arrival on the North American continent [as stated in] Johnson v. McIntosh. . . . For nearly two centuries this Court has dehumanized original, free, and independent Nations and Peoples by issuing decisions and using language consistent with the doctrine’s religious and racist foundations—e.g., red man, uncivilized, barbarous, ignorant, unlearned, non-Christians, heathens, savages, infidels—all in an effort to manufacture a legal basis for the physical and cultural genocide of Native Peoples.

Brief of Amicus Curiae, Confederated Tribes and Bands of the Yakama Nation in Support of Respondent, Washington State Department of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 2018 WL 4739661, at *5–6

The Yakama then offered the Supreme Court an “opportunity to repudiate the doctrine of Christian discovery.” They pointed out the fact that other “troubling decisions throughout history have . . . been repudiated,” as occurred with the “separate but equal” doctrine. They called on the court “to repudiate the doctrine of discovery . . . in this case and all future cases.”

The Supreme Court ruled for Cougar Den under the Yakama Treaty. It rejected the state and US arguments in two separate opinions: one by Justice Stephen Breyer (joined by Justices Sonia Sotomayor and Elena Kagan) and another by Justice Gorsuch (joined by Justice Ruth Bader Ginsburg). Both opinions cited the Yakama amicus brief to clarify the meaning of the 1855 treaty but neither opinion discussed the Christian discovery question. In fact, even the dissenting justices avoided talking about Christian discovery, focusing on treaty language instead.

The Brackeen case is a significant moment in the development of federal anti-Indian law. However the court decides it, we would do well to take stock of the relationship between Indigenous peoples and the US and seek a way forward that does not rest on and arise from colonial domination disguised as “protection”.