By Dorothy Alther, CILS Legal Director

The U.S. Supreme Court issued three Indian law decision in 2023 that upheld the Indian Child Welfare
Act (ICWA), waived tribal immunity under the Bankruptcy Code and ended the term with once again
narrowing the enforceability of the trust responsibilities the federal government owes tribes and Native
Americans. Overall, 2023 could have been better for tribes but could have been much worse.

1. Haaland v. Brackeen, 599 U.S. 255, 143 S. Ct. 1609, 216 L. Ed. 2d 254 (2023). The most
anticipated case before the Supreme Court in 2023 was Haaland v. Brackeen, 599 U.S. 255
(2023). The case challenged the constitutionality of the ICWA and was brought t by three states
(Texas, Louisiana, and Indiana) and three non-Native families whose core argument is that the
ICWA discriminated against Native children on the basis of race by forcing state courts to treat
them differently than other children in dependency and adoption proceedings. Other more
obscurer constitutional arguments were advanced (i.e. congress had no authority to pass the
ICWA, matters of child welfare are state not federal issues,…). The Petitioners’ arguments were
rejected by the Court and doing so strongly suggests that they do not (or at least the majority)
have an appetite to overturn the decades old law protecting Native children and families.

A key feature of the decision is the unexpected concurring opinion by Judge Niel Gorsuch, which
chronicles the disturbing and tragic historical treatment of Native children by federal and state
governments. Gorsuch’s opinion not only solidified Congress’ authority to enact the ICWA but
the need to do so in order to protect Native children and families.

As a practicing Indian lawyer of almost 40 years, I have never seen the tribes throughout the
country galvanize behind a case as strongly and vocally as the Brackeen case. Some predict that
anti-ICWA forces may mount another challenge in the future, but the strength of tribes and
tribal communities will undoubtedly be ready to meet the challenge and defend their children.

2. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382, 143 S. Ct.
1689, 216 L. Ed. 2d 342 (2023). The Supreme Court retreated from its pro-tribe position in the
Brackeen case, and found that tribal governments and courts are subject to the power of the
Bankruptcy Court to stay collection proceedings against a debtor whose has filed bankruptcy. In
Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382 (2023) the
debtor sought to avoid collection actions taken by the tribe on a personal loan by filing for
bankruptcy. Under the Bankruptcy Code, all collection actions, including “government”
collection proceedings, are “stayed” aka stopped until the Bankruptcy Court case is resolved.
The tribe unsuccessfully argued that congress did intend to abrogate tribal sovereign immunity
by including “tribes” within the definition of “governments” when enacting the Bankruptcy
Code.

The Supreme Court disagreed and took the opportunity to opine on when and how congress, in
enacting federal legislation, waives tribal immunity. The majority without restraint held “our
analysis of the question whether the Code abrogates the sovereign immunity of federally
recognized tribes is remarkably straightforward. The Code unequivocally abrogates the
sovereign immunity of all governments, categorically.  Tribes are indisputably governments. 
Therefore, § 106(a) unmistakably abrogates their sovereign immunity too.”

The ease at which the Court found congressional abrogation of tribal immunity, is concerning
and a departure from earlier holdings requiring that such waivers be express and unambiguous.
We anticipate that the Coughlin holding we will have a far-reaching impact beyond the
Bankruptcy Code.

3. Arizona v. Navajo Nation, 599 U.S. 555, 143 S. Ct. 1804, 216 L. Ed. 2d 540 (2023). Presenting a
thorough analysis of the Supreme Court’s holding in Arizona v. Navajo Nation, 599 U.S. 555
(2023) is beyond the scope of this update. The central holding was the Tribe could not sue the
federal government for breach of trust for its failure to actively take steps to determine, assess
or plan for meeting the water needs of the Navajo Reservation’s and ensuring that the Nations
unquantified rights to water in the mainstream of the lower Colorado River were being
considered and protected by the federal government.

While tribes and Native American’s are aware that there is a trust relationship between them
and the federal government, the courts routinely find that a breach of the government’s trust
responsibilities is not legally actionable. The Supreme Court in Navajo Nation reaffirmed this
legal principle by again finding that “To maintain such a claim here, the Tribe must establish,
among other things, that the text of a treaty, statute, or regulation imposed certain duties on
the United States. See United States v. Jicarilla Apache Nation, 564 U. S. 162, 173–174, 177–178
(2011); United States v. Navajo Nation, 537 U. S. 488, 506–507 (2003); United States v. Mitchell,
445 U. S. 535, 542, 546 (1980). The Federal Government owes judicially enforceable duties to a
tribe “only to the extent it expressly accepts those responsibilities.” Not all is lost for the Navajo
Nation in pursuing its claims against the federal government to ensure its reservation has
sufficient water to meet future needs, as the Court suggested the tribe had other legal avenues,
but a breach of trust claim was not one of them.