Ilya Shapiro reacts to SCOTUS decision in Brackeen v. Haaland

NEW YORK, NY – Comments from Ilya Shapiro, senior fellow and director of constitutional studies at the Manhattan Institute, regarding this morning's Supreme Court decision in the case of Brackeen v. Haaland:

"This was a complicated case, both factually and legally, and it ends with a muddled and unfortunate decision. As Justice Barrett painstakingly explains in her majority opinion, the Indian Child Welfare Act 'requires a state court to place an Indian child with an Indian caretaker . . . even if the child is already living with a non-Indian family and the state court thinks it in the child’s best interest to stay there.' The three custody disputes at the heart of Brackeen, as well as a brief that I filed at the cert stage of this case, illustrate the too frequently sad consequences of that law. It’s a close call whether Congress, in exercising its constitutional authority to regulate Native American affairs, can intrude on state prerogatives over family law, requiring, as Justice Gorsuch puts in concurrence, 'a bird’s-eye view of how our founding document mediates between competing federal, state, and tribal claims of sovereignty.' And it may well be that the plaintiffs here sued the wrong defendants: federal officials rather than the state agencies that enforce ICWA’s placement preferences.

"But that doesn’t resolve what Justice Kavanaugh concurs separately to recognize as a 'serious' equal-protection issue whereby 'a child in foster care or adoption proceedings may in some cases be denied a particular placement because of the child’s race.' If the Constitution isn’t a suicide pact, it also shouldn’t be the facilitator of race-based custody proceedings involving U.S.-citizen children who may never have set foot on Indian lands, merely because the children happen to have some quantum of Native American blood."

— Ilya Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute. To book an interview with Mr. Shapiro, please contact Nic Abouchedid at nabouchedid@manhattan.institute or Nora Kenney at nkenney@manhattan.institute.