175
Brackeen and the “Domestic Supply of
Infants”
MARCIA ZUG*
Introduction
In November 2022, the Supreme Court heard oral arguments in Brackeen
v. Haaland.
1
The case concerns the constitutionality of the Indian Child
Welfare Act (ICWA), a statute enacted in 1978 to help keep Indian children
connected to their families and culture.2 Most Indian child and family
advocates consider ICWA a success.3 The Act is routinely referred to as
1. See Transcript of Oral Argument, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378,
21-380 (U.S. Nov. 9, 2022).
2. Indian Child Welfare Act of 1978, Pub. L. No. 95-608, 92 Stat. 3069 (1978) (codied as
25 U.S.C. §§ 1901–63).
3. See 149 coNg. Rec. 28327 (2003) (statement of Rep. Young). On the 25th anniversary of
ICWA’s enactment, Representative Don Young of Alaska spoke before the House of Representatives
and described the Act as “the most important Indian law the Congress has enacted.” Id. at 28328.
See also Tara Hubbard & Fred Urbina, ICWA—The Gold Standard: Golden Nuggets of Evidence
from Arizona, aRiZ. att’y, July/Aug. 2022, at 32, 38 (noting “[t]he data from the Pascua Yaqui
Tribe and Pima County ICWA Courts show the success of ICWA and support the nickname ICWA
has earned as the ‘gold standard’”).
* Marcia Zug is the Miles and Ann Loadholt Professor of Family Law at the University of
South Carolina School of Law. She thanks Professors Lisa Grumet, Solangel Maldonado, and
Ned Snow for their valuable assistance with this piece.
Published in Family Law Quarterly, Volume 56, Numbers 2 & 3, 2022–2023. © 2023 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
