Haaland v. Brackeen (21-376)
argument 21-376Haaland v. Brackeen
Supreme Court of the United States
3h 12m
8 speakers
5 chapters
transcribed 7 days ago
official recording ↗
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What is the Indian Child Welfare Act and how does the “good cause” standard work?
We will hear argument this morning in case twenty one three seventy six. Holland versus Brecken and the consolidated cases.
Mr McGill. Thank you, Mr Chief Justice, and may it please the Court. According to the federal government, in twenty twenty there were over eleven thousand Native American children in state foster care. The Indian Child Welfare Act deprives native deprives Indian children of the best interest of the child test. It replaces that test with a hierarchy of placement preferences that puts nat non Indian families at the bottom of the list. As this Court explained in Holyfield, This effectuates a federal policy of sending Indian children to the Indian community. The problem is that there are fewer than two thousand Native American foster homes. That means each year hundreds, if not thousands, of Indian children are placed in non Indian foster homes.
and sometimes there they bond with those families. Yet when those families try to adopt those children, Iqua rears its head for a second time, allowing tribes to play the proverbial Iqua trump card at the eleventh hour. This is happening now for a second time to the Brackens as they try to adopt YRJ, who is now four and a half years old. For a second time, the Brackeens are asked to show good cause to overcome the placement preferences under a new regulatory standard that in the agency's words is narrow, limited, and not a best interests test. Not even YRJ's deep attachment to the Brackens after being part of their e family for four years is sufficient. For both that child and her family This flouts the promise of equal justice under the law.
I welcome the Court's questions.
Uh would you spend a minute on uh what the good cause standard is? Um I I think Course you understand that there's already a placement, there's already adoption in process, but how does that work?
Justice Thomas, the uh After the twenty sixteen rule, what the what at twenty five CFR twenty three point one three two You now there are now five enumerated ways in which good cause can be shown. The government says that it mere that the regulation merely says that it uh should be one of these five factors. Uh but you know a remarkable thing happens when a family court judge in the States picks up a copy of the Code of Federal Regulations. He treats it as binding federal law. And That is how it happens on the ground. It is treated as enumerated things that must be shown. Further, it excludes any consideration of socioeconomic circumstances of the competing families. And finally, it says that What the regulation describes as ordinary bonding and attachment that arises from a placement that is in violation of ICWA's placement preferences shall not be a the suff a sufficient or sole basis for showing good cause.
And of course the child uh at at issue in these proceedings has no stake in whether She or he was placed uh in supposed violation of ICWA's preferences at the foster care uh at the foster care process.
Council, you haven't challenged the regulation.
Uh yes we have, Your Honor. We have a challenge to the understanding. Um Your Honor, we challenge the we raised uh a challenge in our complaint to the
I'm not asking about the complaint. The cert granted question does not include Challenges to the regulation. It challenges the statute.
We challenge the uh regulation as an unconstitutional
Answer the question. Is it part of the question presented or not?
I believe it is, Your Honor.
Did you seek cert on that question?
We did not seek cert on the question of the whether it is a permissible construction of the statute. We sought cert on whether the statute is
But if it if you don't seek cert on that, there is nothing on that good cause standard. I don't think so, Your
Honor.
Council, can I turn to something you said, which was it displaces the best interest of the child. standard. In most state custody proceedings the best interest of the child is uh what guides those decisions. Yet we have the Hague Convention on the abduction of children That basically says to the court.
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Chapters
5 chapters
1
What is the Indian Child Welfare Act and how does the “good cause” standard work?
0:00–8:55
2
How do the five enumerated “good cause” factors limit a tribe’s placement preferences?
8:55–19:39
3
What arguments are made about Congress’s plenary power over Indian affairs versus state authority?
19:39–49:02
4
How do the anti‑commandeering doctrine and equal‑protection concerns affect the ICWA challenge?
49:02–1:36:41
5
Why does Congress view ICWA as a valid exercise of its plenary power over Indian affairs?
1:36:41–3:12:19