Supreme Court of the United States · Official docket →
Deb Haaland, Secretary of the Interior, et al. v. Chad Everet Brackeen, et al.
Paid petition · United States Court of Appeals for the Fifth Circuit, No. 18-11479 · judgment April 6, 2021
Decided · June 15, 2023
Pre-decision estimate: 41% cert probability (95% interval 32%–52%)
Before the decision, about 10× the 4.1% base rate. The model weighted this up for a federal-government petitioner, counsel who has won certiorari before, and a Fifth Circuit decision below.
Questions presented
Consolidated with 21-377. Congress enacted the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. 1901 et seq., "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." 25 U.S.C. 1902. The provisions of 25 U.S.C. 1912 establish minimum federal standards for the removal of Indian children from their families, while 25 U.S.C. 1915(a) and (b) establish default preferences for the placement of such children in adoptive or foster homes. The statute also contains several recordkeeping provisions. See 25 U.S.C. 1915(e), 1951(a). Three States and seven individuals brought suit, asserting that these and other ICWA provisions are facially unconstitutional. The district court agreed and granted declaratory relief. The en banc court of appeals rejected most of the plaintiffs' challenges, but affirmed, in some respects by an equally divided vote, the judgment declaring the foregoing provisions invalid. The questions presented are:
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Whether various provisions of ICWA-namely, the minimum standards of Section 1912(a), (d), (e), and (f); the placement-preference provisions of Section 1915 (a) and (b); and the recordkeeping provisions of Sections 1915(e) and 1951(a)-violate the anticommandeering doctrine of the Tenth Amendment.
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Whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for "other Indian families," 25 U.S.C. 1915(a)(3), and for "Indian foster home[s]," 25 U.S.C. 1915(b)(iii).
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Whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection.
Counsel of record
For petitioner
Elizabeth B. Prelogar
Solicitor General
For respondent
Ian Heath Gershengorn
Jenner & Block
Argument & decision
Argued November 9, 2022 — Matthew D. McGill · Judd E. Stone · Edwin S. Kneedler · Ian H. Gers.... Audio and transcript
Decided June 15, 2023. Opinion by Barrett.
Proceedings
- Jul 17 2023Judgment issued.
- Jun 15 2023Adjudged to be AFFIRMED IN PART, REVERSED IN PART, VACATED AND REMANDED IN PART. Barrett, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor, Kagan, Gorsuch, Kavanaugh, and Jackson, JJ., joined. Gorsuch, J., filed a concurring opinion, in which Sotomayor and Jackson, JJ., joined as to Parts I and III. Kavanaugh, J., filed a concurring opinion. Thomas, J., and Alito, J., filed dissenting opinions. VIDED.
- Nov 09 2022Argued. For Chad Everet Brackeen, et al.: Matthew D. McGill, Washington, D. C. For Texas: Judd E. Stone, II, Solicitor General, Austin, Tex. For federal parties: Edwin S. Kneedler, Deputy Solicitor General, Department of Justice, Washington, D. C. For tribal parties: Ian H. Gershengorn, Washington, D. C. VIDED.
- Oct 03 2022Motion for divided argument and enlargement of time for oral argument filed by the Solicitor General GRANTED. VIDED.
- Oct 03 2022Reply of plaintiff/appellee Texas filed. VIDED (Distributed)
- Oct 03 2022Reply of plaintiffs/appellees Chad Everet Brackeen, et al. filed. VIDED. (Distributed)
- Sep 13 2022The record received from the U.S.D.C. Northern District of Texas has been electronically filed.
- Sep 12 2022Record requested from the U.S.C.A. 5th Circuit.
- Sep 12 2022The record from the U.S.C.A. 5th circuit is electronic and located on Pacer.
- Aug 25 2022Application (22A171) granted by Justice Alito extending the time to file the reply briefs on the merits to and including October 3, 2022. VIDED.
- Aug 21 2022CIRCULATED
- Aug 19 2022Application (22A171) of plaintiffs/appellees to extend the time to file their consolidated reply briefs on the merits from September 12, 2022 to October 3, 2022, submitted to Justice Alito. VIDED.
- Aug 19 2022Brief amici curiae of National Indigenous Women's Resource Center, et al. filed. VIDED.
- Aug 19 2022Brief amicus curiae of Professor Gregory Ablavsky filed. VIDED.
- Aug 19 2022Brief amici curiae of Casey Family Programs, et al. filed. VIDED.
- Aug 19 2022Brief amici curiae of Indian Law Professors filed. VIDED.
- Aug 19 2022Brief amici curiae of 87 Members of Congress filed. VIDED.
- Aug 19 2022Brief amicus curiae of Robyn Bradshaw filed. VIDED
- Aug 19 2022Brief amici curiae of Former Foster Children filed. VIDED.
- Aug 19 2022Brief amici curiae of Family Defense Providers filed. VIDED.
- Aug 19 2022Brief amici curiae of California, et al. filed. VIDED.
- Aug 19 2022Brief amici curiae of 497 Indian Tribes and 62 Tribal and Indian Organizations filed. VIDED.
- Aug 19 2022Brief amicus curiae of Constitutional Accountability Center filed. VIDED.
- Aug 19 2022Brief amici curiae of American Psychological Association, et al. filed. VIDED.
- Aug 19 2022Brief amici curiae of American Academy of Pediatrics and American Medical Association filed. VIDED.
- Aug 19 2022Motion for divided argument and enlargement of time for oral argument filed by the Solicitor General. VIDED.
- Aug 19 2022Amicus brief of American Historical Association and Organization of American Historians not accepted for filing. (Corrected brief and PDF to be submitted.)
- Aug 19 2022Brief amici curiae of American Historical Association, et al. filed. VIDED. (Aug. 30, 2022)
- Aug 18 2022Brief amicus curiae of Aubrey Nelson and Sam Evans-Brown filed. VIDED.
- Aug 18 2022Brief amici curiae of American Civil Liberties Union and Fourteen Affiliates filed. VIDED.
- Aug 18 2022Brief amicus curiae of American Bar Association filed. VIDED.
- Aug 18 2022Brief amicus curiae of Senator James Abourezk filed. VIDED.
- Aug 18 2022Brief amici curiae of Administrative Law and Constitutional Law Professors, et al. filed. VIDED.
- Aug 18 2022Amicus brief of National Association of Counsel for Children and 30 other children's rights organizations not accepted for filing. (Corrected brief and PDF to be submitted.)
- Aug 18 2022Brief amici curiae of National Association of Counsel for Children, et al. filed. VIDED. (Aug. 30, 2022)
- Aug 17 2022Brief amicus curiae of Counsel for the County of Los Angeles filed. VIDED.
- Aug 15 2022Blanket Consent filed by Petitioner, Deb Haaland, Secretary of the Interior, et al.
- Aug 12 2022Brief of defendants-appellants tribal parties filed. VIDED.
- Aug 12 2022Brief of defendants-appellants federal parties filed. VIDED.
- Aug 03 2022ARGUMENT SET FOR Wednesday, November 9, 2022. VIDED.
- Aug 03 2022Motion to further extend the time within which to file the response briefs on the merits granted, and the time is extended to and including August 12, 2022. VIDED.
- Aug 01 2022Motion for a further extension of time within which to file the response briefs on the merits filed. VIDED.
- Jul 21 2022Blanket Consent filed by Respondent, Cherokee Nation, et al.
- Jul 21 2022Blanket Consent filed by Respondent, Navajo Nation
- Jun 02 2022Brief amici curiae of Christian Alliance for Indian Child Welfare, et al. filed. VIDED
- Jun 02 2022Brief amici curiae of Academy of Adoption and Assisted Reproduction Attorneys, et al. filed. VIDED.
- Jun 02 2022Brief amicus curiae of New Civil Liberties Alliance in support of Texas filed. VIDED
- Jun 02 2022Brief amicus curiae of Citizens for Equal Rights Foundation in support of neither party filed. VIDED
- Jun 01 2022Brief amici curiae of Goldwater Institute, et al. filed. VIDED.
- Jun 01 2022Brief amicus curiae of Foster Parents and Pacific Legal Foundation in support of Chad Everet Brackeen, et al. filed. VIDED.
- Jun 01 2022Brief amicus curiae of Project on Fair Representation filed. VIDED.
- Jun 01 2022Brief amici curiae of States of Ohio and Oklahoma filed. VIDED.
- May 26 2022Brief of plaintiff/appellee The State of Texas filed. VIDED.
- May 26 2022Brief of plaintiffs/appellees Chad Everet Brackeen, et al. filed. VIDED.
- May 26 2022Joint appendix filed (statement of costs filed). VIDED.
- Mar 31 2022Application (21A555) granted by Justice Alito to file consolidated briefs on the merits in excess of the word limits, provided that plaintiffs/appellees file two consolidated opening briefs on the merits of no more than 20,000 words each and two consolidated reply briefs on the merits of no more than 8,000 words each, and that defendants/appellants file three consolidated response briefs on the merits of no more than 22,500 words each.
- Mar 29 2022Motion of the parties to extend the time to file the briefs on the merits granted. The time to file the joint appendix and the opening briefs on the merits is extended to and including May 26, 2022. The time to file the response briefs on the merits is extended to and including August 5, 2022. VIDED.
- Mar 29 2022Application (21A555) to file consolidated briefs on the merits in excess of the word limits, submitted to Justice Alito.
- Mar 18 2022Blanket Consent filed by Chad Everet Brackeen, et al. VIDED.
- Mar 18 2022Blanket Consent filed by Texas. VIDED.
- Mar 18 2022Joint motion of the parties for an extension of time to file the briefs on the merits filed. VIDED.
- Feb 28 2022Petition GRANTED. The petitions for writs of certiorari in Nos. 21-377, 21-378, and 21-380 are granted. The cases are consolidated, and a total of one hour is allotted for oral argument. Parties that were plaintiffs/appellees in the lower courts shall file opening and reply briefs in conformity with Rules 33.1(g)(v) and 33.1(g)(vii), under the schedule set forth in Rules 25.1 and 25.3. Parties that were defendants/appellants in the lower courts shall file briefs in conformity with Rule 33.1(g)(vi), under the schedule set forth in Rule 25.2.
- Feb 28 2022Because the Court has consolidated these cases for briefing and oral argument, future filings and activity in the cases will now be reflected on the docket of No. 21-376. Subsequent filings in these cases must therefore be submitted through the electronic filing system in No. 21-376. Each document submitted in connection with one or more of these cases must include on its cover the case number and caption for each case in which the filing is intended to be submitted. Where a filing is submitted in fewer than all of the cases, the docket entry will reflect the case number(s) in which the filing is submitted; a document filed in all of the consolidated cases will be noted as “VIDED.”
- Feb 22 2022DISTRIBUTED for Conference of 2/25/2022.
- Feb 11 2022DISTRIBUTED for Conference of 2/18/2022.
- Jan 18 2022DISTRIBUTED for Conference of 1/21/2022.
- Jan 10 2022DISTRIBUTED for Conference of 1/14/2022.
- Dec 22 2021DISTRIBUTED for Conference of 1/7/2022.
- Dec 22 2021Reply of petitioners Deb Haaland, Secretary of the Interior, et al. filed. (Distributed)
- Dec 08 2021Brief of respondents Chad Everet Brackeen, et al. filed. VIDED.
- Dec 08 2021Brief of respondents Texas in opposition filed. VIDED.
- Oct 29 2021Motion to extend the time to file a response is granted and the time is further extended to and including December 8, 2021, for all respondents.
- Oct 25 2021Motion to extend the time to file a response from November 8, 2021 to December 8, 2021, submitted to The Clerk.
- Oct 08 2021Brief amici curiae of Goldwater Institute, et al. filed.
- Oct 08 2021Brief amici curiae of California, et al. filed.
- Oct 08 2021Brief amici curiae of Casey Family Programs, et al. filed.
- Oct 08 2021Brief amici curiae of 180 Indian Tribes and 35 Tribal Organizations filed.
- Oct 06 2021Waiver of right of respondent Navajo Nation to respond filed.
- Sep 27 2021The motions to extend the time to file responses are granted and the time is extended to and including November 8, 2021, for all respondents.
- Sep 24 2021Motion of Chad E. Brackeen, et al. to extend the time to file a response from October 8, 2021 to November 8, 2021, submitted to The Clerk.
- Sep 24 2021Motion of Texas to extend the time to file a response from October 8, 2021 to November 8, 2021, submitted to The Clerk.
- Sep 03 2021Petition for a writ of certiorari filed. (Response due October 8, 2021)