Federalism and Pop Psychology in Two SCOTUS Cases Today Involving Native Americans

 by Michael C. Dorf

The Supreme Court decided two cases today that involve the relation between the federal government and American Indian tribes. (SCOTUS uses the term "Indian," which is generally deemed acceptable. With apologies to those with different preferences, I'll do the same.) In Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, the Court, in an opinion by Justice Jackson, ruled 8-1 that the bankruptcy code abrogates the sovereign immunity of Indian tribes. In Haaland v. Brackeen, the Court, in an opinion by Justice Barrett, ruled 7-2 that the Indian Child Welfare Act (ICWA) falls within the enumerated powers of Congress, does not violate the anti-commandeering principles the Court has previously articulated, and cannot be challenged by the current parties with respect to equal protection due to issues of standing.

The big news here is probably the lack of news in Brackeen. As I wrote after the oral argument back in November, the Justices seemed especially interested in the question of how far one can go with the proposition that tribal status is a political rather than a racial classification. Today's ruling leaves that issue open for future litigation in a case in which it is squarely presented.

But even though the Court didn't decide the hot-button issue, both of today's American Indian cases are interesting and potentially important. Below I'll talk about how in each case the Court rejected states' rights claims by reaffirming important limits on what was for a while called the "federalism revolution" of the Rehnquist Court. I'll then offer a few speculative thoughts on the motives of particular Justices.


(1) In Lac du Flambeau, the tribe argued that, notwithstanding a provision of the bankruptcy code abrogating sovereign immunity of any "governmental unit," tribes retain their sovereign immunity. Under the Court's prior precedents, Congress may abrogate sovereign immunity only through unequivocal language. A related provision of the code defines a governmental unit as the "United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or instrumentality of the United States (but not a United States trustee while serving as a trustee in a case under this title), a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government." The petitioners argued (and Justice Gorsuch in dissent agreed) that the failure to expressly refer to tribes meant that they were not included in the catchall "other foreign or domestic government." However, the majority rejected that argument on the ground that the clear-statement "rule is not a magic-words requirement."

The near-unanimity of Lac du Flambeau underscores the stability (which is not to say the coherence or correctness) of the Court's state sovereign immunity doctrine. In the 1990s and early 2000s, when the Court was frequently discovering and expanding protections for states' rights, it sometimes seemed to move the goalposts. It would demand a clear statement for abrogation and then say that abrogation wasn't possible after all, for example. A Court interested in continuing that march might have done so here.

To be sure, the fact that Lac du Flambeau involves an Indian tribe rather than a state as defendant complicates matters slightly. But not all that much. The core principle--no magic words--would apply in state-defendant cases too.

Indeed, Lac du Flambeau is notable in another regard. The Court has held that Congress generally lacks the power to abrogate state sovereign immunity except through legislation that is "congruent and proportionate" to violations of the substantive provisions of the Fourteenth Amendment. However, in Central Valley Community College v. Katz, the Court held that Congress can also abrogate when acting pursuant to its bankruptcy power. That decision was 5-4. It now appears to be fully accepted. Chief Justice Roberts and Justice Thomas are the two Katz dissenters still on the Court. Justice Thomas concurred in the judgment in Lac du Flambeau but did not question Katz. Neither did any other Justice.

The Court doesn't look like it will scale back sovereign immunity, but it doesn't show any appetite for expanding it further.

(2) Brackeen involved two of the other major sites of the federalism revolution: affirmative power and the so-called anti-commandeering doctrine. With respect to both, the Court rejected all of the arguments that would have expanded states' rights.

(a) Affirmative power. Justice Barrett's majority opinion cited four sources of authority for the passage of ICWA--which supersedes state law with respect to the placement of Indian children (defined broadly) for adoption and foster care: the Indian Commerce Clause; the Treaty Clause; structural assumptions and perhaps pre-Constitutional powers; and the trust relationship between the United States and American Indians. Notably, those last two categories do not find expression in any specific clause of the Constitution. Meanwhile, the Treaty Clause is not directly implicated because no one claims that ICWA implements a treaty. And Justice Barrett's response with respect to Indian Commerce is simply to cite precedent holding "that Congress’s power under the Indian Commerce Clause encompasses not only trade but also 'Indian affairs.'"

If the Court were interested in continuing the federalism revolution with respect to enumerated powers, it could have cut back on that broad interpretation. Or it could have said, with some justification, that the inference of broad congressional power to regulate anything pertaining to Indian tribes or individuals smacks of the sorts of penumbras and emanations that textualists and originalists eschew. But the Court did not go anywhere near there.

Nor did the Court accept the argument--advanced by Justice Alito in dissent--that there is special reason to be concerned about the exercise of congressional power over family law. Justice Barrett was right to reject what she called a "constitutional carveout" for family law, but that's not the best characterization of the argument Justice Alito made. In United States v. Lopez, the Court rejected the Gun Free School Zones Act in part because it was premised on federal regulation of street crime and education--both areas traditionally within the domain of state law. The Court made a similar move with respect to the Violence Against Women Act in United States v. Morrison. In those cases, traditional state regulatory authority in an area was treated as a kind of tie-breaker to reject assertions of congressional power in close cases. The Court in Brackeen didn't think traditional state authority with respect to family law was even relevant to the scope of congressional power. In that respect, the case arguably cuts back on the Rehnquist Court federalism precedents.

(b) Anti-commandeering. The petitioners argued that ICWA unconstitutionally "commandeers" state executive and judicial officials to carry out federal mandates regarding placement of children in homes. The Court rejected the claims simply by relying on previously articulated limits on the anti-commandeering doctrine.

One such limit--first and most forcefully articulated in Reno v. Condon--states that regulations of the states that are comparable to regulations of private actors do not implicate anti-commandeering. Because private adoption agencies and others must comply with ICWA, the Court rejected the claim that ICWA commandeers state executive officials.

The Court was equally dismissive of claims that ICWA commandeers state courts. Here Justice Barrett relied on prior decisions that distinguished impermissible commandeering of state executive and legislative officials from permissible obligations on state judges. She noted, as the Court had previously, that the Supremacy Clause expressly imposes obligations on state judges.

For what it's worth, I've never found that point especially compelling. The Supremacy Clause tells state judges they are "bound" by federal law notwithstanding contrary provisions of state law, but that's also true of state legislative and executive officials even though they're not expressly mentioned. The better basis for treating state courts differently is probably the Madisonian Compromise of Article III: if Congress had created no lower federal courts, state courts would be the only place where most federal claims could be brought in the first instance. Thus, laws that tell state courts how to handle issues involving federal law and federal interests could be understood as necessary and proper to the congressional choice whether to create lower federal courts or leave to state courts the vindication of federal interests.

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In any event, the important point for now is that at every turn, today's cases rejected new limits on congressional power.

Pop Psychology

I'll add a brief word about the lineups.

(a) Justice Gorsuch. In both his dissent in Lac du Flambeau and especially in a concurrence in Brackeen (joined in part by Justices Sotomayor and Jackson), Justice Gorsuch once again demonstrated that of all the Justices to sit on the Supreme Court, he alone rivals Justice William O. Douglas as a champion of the rights of American Indians and Indian tribes. The Brackeen concurrence is especially notable for its tone and content, (quite appropriately) condemning past efforts to extinguish tribal identity through forced assimilation and defending ICWA as a proportionate response.

At this point, Justice Gorsuch's sympathy for American Indians and Indian tribes cannot be doubted. Its exact source is a bit of a mystery. I have seen it said that, as with Douglas, it comes from the fact that Gorsuch is a westerner. But that's hardly a satisfactory explanation. So were Bryon White, William Rehnquist, and Sandra Day O'Connor, none of whom was a special champion of Indian rights.

Perhaps it's pointless to speculate. People attribute Justice Kennedy's sympathy for gay rights to his personal friendships, but that only raises the question of why he was open to such friendships. Why any of us develops the particular views we have is a complex and perhaps unanswerable question.

(b) Adoptive Parents

In a brief concurrence in Brackeen, Justice Kavanaugh indicates that he thinks the equal protection question the Court does not decide is serious. In dissent, Justice Alito observes that ICWA can lead to painful results--as when a child is placed by Indian parents and government officials in a non-Indian home, grows attached to the adoptive parents, and then is removed in response to a tribal objection. I'm not sure what I think of these points as a constitutional matter, but, at least as a policy matter, these cases can be quite challenging.

If one takes a purely legal realist perspective, therefore, one might think that someone who worries about the welfare of individual children and their adoptive parents would be inclined to find a way to invalidate ICWA. And who better to have such worries than Justices who are themselves adoptive parents? Yet the two adoptive parents on the Court--Chief Justice Roberts and Justice Barrett--were in the majority. Indeed, Justice Barrett has adopted two children of a different race. One might therefore think she would be motivated more than anyone to find a way to invalidate ICWA. And yet she wrote the lead opinion validating it. Why?

One possibility is that Justice Barrett found the federalism objections unpersuasive but would invalidate ICWA's preferences on equal protection grounds if and when they return to the Court. Another possibility is that she is unaffected by her personal views--an umpire simply calling balls and strikes.

Let me suggest a third possibility, speaking as someone who, like Justice Barrett, is the parent of both biological and adoptive children (though in my case only one of each).

I never worried that I felt differently about my children based on my genetic connection to one versus racial difference with the other. Why not? Because I didn't and don't feel differently. They're very different people, of course (as are most biological siblings from one another), but I suspect that anyone who is a reasonably good adoptive parent--as I assume both Chief Justice Roberts and Justice Barrett are--thinks of themselves as simply a parent.

That said, there is a rather strong ethos among the broader adoption community to regard adoption as second-best for the child. I don't think I was ever told in so many words to take this view, but almost immediately I understood that whenever someone said that my daughter was "lucky" to have been adopted by me, I was to object that no, I was lucky to have her in my family. To be clear, I actually felt and feel this way, but I also believe that, paradoxically or at least ironically, adoptive parents are more likely than the general public to think that children are best off if they can be raised by their family of origin or, as with ICWA, members of the same community as their family of origin.

Admittedly, the third-order preference in ICWA for any Indian tribal home doesn't fit that story, but that's a matter that the Court can address if and when the issue returns in an as-applied context. In the meantime, I'm suggesting--okay, speculating would be a better term--that being adoptive parents might have made Chief Justice Roberts and Justice Barrett especially sympathetic to the underlying policy of ICWA.