No. 21-376
IN THE MOCK SUPREME COURT OF THE STATE OF CALIFORNIA
___________
DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.,
PETITIONERS
v.
CHAD EVERET BRACKEEN, ET AL.
___________
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
___________
Lower Court United States Court of Appeals for the Fifth Circuit
___________
TABLE OF CONTENTS
Introduction …………………………………………………………………………………… 1
Statement ………………………………………………………………………………………. 2
Procedural History …………………………………………………………………………….. 3
Summary of Argument ………………………………………………………………………… 4
A. Anti Commandeering principles contradict the Supremacy Clause …………………….. 4
B. By striking down the Indian Child Welfare Act, you invalidate Tribal sovereignty. …... 4
C. Putting Native American children with Native American families is in the best interest of
the child. ………………………………………………………………………….……... 5
D. The Indian Child Welfare Act preserves culture that is the basis of American history…. 6
Conclusion ……………………………………………………………………………………… 8
QUESTION PRESENTED
Do the Indian Child Welfare Act’s restrictions on placement of Native American children violate
anti-commandeering principles of the Tenth Amendment?
ii
PARTIES TO THE PROCEEDING
Petitioners Deb Haaland, in her official capacity as Secretary of the United States Department of
the Interior; Bryan Newland, in his official capacity as Assistant Secretary–Indian Affairs;
Bureau of Indian Affairs; United States Department of the Interior; United States of America;
Xavier Becerra, in his official capacity as Secretary of the United States Department of Health
and Human Services; and United States Department of Health and Human Services were
defendants in the district court and appellants in the court of appeals.*
Respondents Chad Everet Brackeen; Jennifer Kay Brackeen; Danielle Clifford; Jason Clifford;
Altagracia Socorro Hernandez; Frank Nicholas Libretti; Heather Lynn Libretti; State of Texas;
State of Louisiana; and State of Indiana were plaintiffs in the district court and appellees in the
court of appeals. Respondents Cherokee Nation; Oneida Nation; Quinault Indian Nation; and
Morongo Band of Mission Indians were intervenor defendants in the district court and appellants
in the court of appeals. Respondent Navajo Nation was intervenor in the court of appeals.
TABLE OF AUTHORITIES
Mississippi Band of Choctaw Indians v. Holyfield (1989) …………………………………… 7
Tribal Sovereignty ………………………………………………………………………… 1,4,5
Cultural Preservation ………………………………………………………………….. 1,5,6,7,8
Trust Responsibility …………………………………………………………………………….. 5
Best Interests of the Child …………………………………………………………………… 4,5
Indian Child Welfare Act …………………………………………………………… 1,4,5,6,7,8
United Nations Declaration on the Rights of Indigenous Peoples ……………………………. 6,7
Supremacy Clause ……………………………………………………………………………… 4
Constitution ……………………………………………………………………………………. 4,8
United States v. Mitchell (1983) ………………………………………………………………... 5
I.
INTRODUCTION
On November 9, 2022, the case of Haaland v. Brackeen was introduced in front of the
Supreme Court, arguing the constitutionality of the Indian Child Welfare Act (ICWA), a federal
law created to keep Indian children with Indian families further to provide stability and
preservation of Indian tribes and culture.
This case is crucial because the decision affects the future of Native American tribe
sovereignty and law. It challenges the intention of ICWA to preserve Native American culture
and family after historical indigenous erasure through residential schools, conditions of reserves,
and overall unequal treatment towards Native Americans. Secretary Deb Haaland is the first
Native American to serve as a cabinet secretary and has continuously fought for Native
American rights.
The origin of this case began when a 10-month-old Navajo boy was placed with Chad
and Jennifer Brackeen for adoption after the biological mother was caught using drugs and the
biological father’s rights were terminated by a Texas court. Through ICWA, the Navajo nation
attempted to place the child with a Navajo family but failed due to the Brackeen’s established
adoption. As the Brackeens tried to adopt the boy’s sister, the Navajo nation stepped in again and
successfully placed the sister with a Navajo family, which resulted in the Brackeens filing
lawsuit against ICWA on the grounds of racial discrimination, introducing the question of if the
Indian Child Welfare Act’s restrictions on the placement of Native American children violate
anti-commandeering principles of the Tenth Amendment.
Since the initiation of this case, Haaland, along with other Native American leaders, have
expressed their need to oppose this case on the grounds of preserving Native American culture
and families.
II.
STATEMENT
The trial court did not err in holding that the Indian Child Welfare Act (ICWA) violated the
anti-commandeering principles of the Tenth Amendment when it was enacted to preserve Native
American culture and family through children after historical indigenous erasure but also on the
grounds of anti-commandeering principles violating the Constitution itself.
III.
PROCEDURAL HISTORY
At every point in the case, NARF filed tribal amicus briefs, representing 486 federally
recognized Tribes and 59 national and regional Tribal Organizations supporting ICWA. In earlier
stages, the submission of the tribal amicus curiae brief that was submitted to the Supreme Court
in August 2022 ensures that the Court will hear the united message from said tribes in support of
the upholding of this law. The federal government appealed the case alongside four intervening
tribal nations to the Fifth Circuit Court of Appeal, where 325 tribal nations, 57 Native
organizations, 21 states, and 31 child welfare organizations joined the U.S. in filing briefs urging
the Fifth Circuit to uphold the ICWA in January 2019. This effort was successful, as in August
2019, a three-judge panel reversed the district court’s decision and affirmed the constitutionality
of ICWA, recognizing the unique political status of tribal nations alongside safeguarding Indian
child welfare. However, in November 2019, the Fifth Circuit reviewed the decision of the
three-judge panel through an en banc review. The circuit released a 325-page decision in April
2021 stating that the ICWA’s definition of “Indian Child” did not operate based on race,
alongside finding certain sections of ICWA to be unconstitutional. Part of the law that required
state agencies to perform certain acts was found unconstitutional as it violated the Tenth
Amendment. It was then that in September 2021, the U.S. Department of Justices, with support
from intervening tribal nations, Texas, and individual Plaintiffs, formally asked the U.S. Supreme
Court to review the en banc decision from the Fifth Circuit, which was granted with the party’s
legal briefs, being submitted throughout Spring and Summer of 2022.
This case regarding the matter had initially made its way to the Texas District Court, having
adopted the petition filed by Chad and Jennifer Brackeen. Because the Navajo Tribe challenged
their efforts, the Brackeens brought suit to the U.S. District Court in Fort Worth, where the
Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians
all intervened in the case in support of Haaland—the U.S. The District Court declared the ICWA
unconstitutional, with the case being appealed.
I.
II.
IV.
SUMMARY OF ARGUMENT
Anti Commandeering principles contradict the Supremacy Clause contradicts the
anti-commandeering doctrine of the 10th Amendment, stating that the federal
government cannot require states or state officials to adopt or enforce federal law.
A. The Supremacy Clause states, “This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.”
B. With that doctrine in place, it entirely erodes the power of the
Supremacy Clause and the Constitution itself. This, at its core, is
detrimental because by ignoring the supremacy clause for some cases, we
neglect the legitimacy of every case decided based on it.
C. Regarding federal and state laws, federal law reigns supreme and will
always be supreme following the framers’ intent. In no way, shape, or
form can states refuse to follow federal laws when they see fit. The Indian
Child Welfare Act does not violate the anti-commandeering principles of
the Tenth Amendment because it is the anti-commandeering doctrine itself
that violates the Constitution.
By striking down the Indian Child Welfare Act, you invalidate Tribal
sovereignty. The Constitution states that tribal governments are recognized as
distinct governments and have the same powers as that of federal and state. The
Indian Child Welfare has protected the sovereignty of Native American tribes
because it gives them exclusive jurisdiction when it comes to governing their
people.
A. Striking down the Indian Child Welfare Act brings the federal
government a step closer to controlling other aspects of Native
American liberties. Striking down the Indian Child Welfare Act brings the
federal government closer to controlling other aspects of Native American
liberties. Americans have been trying to control Native Americans
throughout history, with this case being one of the many fights for power on
Native American Lands. This control that the federal government tries to
gain has spanned from either working with Tribal nations to assimilation
and near genocide, erasing cultures that have been a backbone of American
History. By striking down an act that has protected sovereignty, at least
giving tribes control of their people, you invalidate the importance of tribal
independence from federal and state governments.
V.
III.
B. The basis of the Indian Child Welfare Act is to protect the children of
their tribe. It states that their purpose is “...to protect the best interest of
Indian Children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards for the
removal of Indian children and placement of such children in homes which
will reflect the unique values of Indian culture... “Putting a Native
American child with a Native American family makes a big difference
because it adds one more legacy to carry the stories and cultures of Native
Americans, the culture we urgently need to preserve. Native Americans are
in charge of their land and people, and ICWA works towards protecting
their people by ensuring children are placed where they will be happy and
within the culture they came from.
C. To uphold the Indian Child Welfare Act is to uphold trust
responsibility. In United States v. Mitchell, a case where tribes sought
reparations for damages the government caused on their land, Trust
Responsibility was established, “the undisputed existence of a general trust
relationship between the United States and the Indian people” and the
backbone of tribal law. According to fcnl.org, This trust is divided into
three subcategories: the protection of Indian trust lands and Indian rights to
use those lands, tribal sovereignty and rights of self-governance, and the
provision of essential social, medical, and educational services for tribal
members. This case falls under subcategory two, the protection of tribal
sovereignty and rights of self-governance. By striking down ICWA, you fail
to protect tribal sovereignty, ultimately ruining the relationship of trust and
responsibility between tribal nations and the federal government.
Putting Native American children with Native American families is in the
child’s best interest. Mentally, physically, and culturally, a native child benefits
more when placed in a home with other tribal members.
A. Keeping a native child from a native family furthers the years of harm
caused by residential schools. Residential schools are made solely to
assimilate Native American Children into European culture and modern
America. Children faced physical, mental, and sexual abuse, and to this day,
deaths are being counted for the kids that nobody knows the names of
because the individual did not matter. What mattered was that Native
Americans left aside and forgot their own culture. The Indian Child Welfare
Act directly responded to the harmful effects of residential schools,
ensuring that no child is withheld from their culture. The restoration years
VI.
of trauma that Native Americans have faced will be wiped away if we
invalidate the Indian Child Welfare Act.
IV.
B. Being placed with extended family, or those of the same tribe, give
children a sense of belonging and identity. Forgetting your culture as a
Native American child is more crucial than any other culture because tribal
culture is diminishing because of the continuous erasure of culture by US
governments. The amicus brief filed with the Supreme Court states, “And
when AAP members treat children from tribal communities, they see that
“there are major benefits to identification and strong linkage to one’s
community—positive self-concept, internal motivation and optimism and
social connectedness, which all contribute to success in adulthood.”
The Indian Child Welfare Act preserves the culture that is the basis of
American history. If culture cannot be passed down through generations, no
matter what percentage of Native American, a child is, it will be forgotten.
Furthermore, as a nation that has benefitted from stolen land, who are we to take
away the one thing Native Americans can have forever: stories, memories, and
family?
A. The UN Declaration on the Rights of Indigenous Peoples is a document
that gives rights, such as self-determination, culture, language, education,
and land, to Indigenous people.
1. Article 11: “Indigenous peoples have the right to practice and
revitalize their cultural traditions and customs. This includes
the right to maintain, protect and develop the past, present and
future manifestations of their cultures…” The given right to
protect their culture, ensuring native children go to native families,
provides the best assurance that native culture will be protected for
the future to come.
2. Article 13: “Indigenous peoples have the right to revitalize, use,
develop and transmit to future generations their histories,
languages, oral traditions, philosophies, writing systems and
literatures, and to designate and retain their own names for
communities, places and persons.” The best way to transmit
histories, languages, oral traditions, philosophies, writing systems,
and literatures to future generations is through memories but also
through having future generations to pass things on to. We cannot
risk a single child missing out on the potential of passing on Native
VII.
American stories because the strength of Native American culture is
vulnerable if not taken care of.
3. Article 13: “Indigenous peoples have the right to revitalize, use,
develop and transmit to future generations their histories,
languages, oral traditions, philosophies, writing systems and
literature, and to designate and retain their names for
communities, places, and persons.” The best way to transmit
histories, languages, oral traditions, philosophies, writing systems,
and literatures to future generations is through memories and having
future generations pass things on. We cannot risk a child missing out
on the potential of passing on Native.
B. Mississippi Band of Choctaw Indians v. Holyfield (1989) This case gave
Tribal governments original jurisdiction on adoption cases. It is important
because it stopped so many Native American children from being placed in
homes outside of their reservations and reinstated the strength and
importance of the Indian Child Welfare Act and what it stands for and
cultural preservation.
C. Passing culture down through children is essential to preserving a
society’s history and identity. It ensures that traditions, beliefs, and
customs are not lost over time but are instead passed on from generation to
generation. This creates a sense of continuity and connection between past
and present, allowing society to understand and appreciate its history and
heritage.
VIII.
CONCLUSION
For this case, although essential to include the importance of preserving
culture when it comes to putting a Native American child with a Native
family, it all comes down to facing the constitutional question. The Indian
Child Welfare Act does not violate anti-commandeering principles because
it is the anti-commandeering doctrine itself that violates the Constitution.