Five Times More Likely: Haaland v. Brackeen and What It Could Mean for Maine Tribes

Authors

Eloise Melcher, University of Maine School of LawFollow

Abstract

In the 1970s Native activists realized that states were removing Native children from their families at disproportional rates when compared to non-Native children. The activists pushed for the enactment of the Indian Child Welfare Act, which became law in 1978. The law increases the burden on states before Native children can be taken from their families. As part of a larger movement to attack the Equal Protection Clause in the courts, Haaland v. Brackeen reached the Supreme Court in 2022. The plaintiffs in Brackeen argue that the Indian Child Welfare Act is unconstitutional for a variety of reasons, including that the law violates the Equal Protect Clause. Part of their Equal Protection argument rests on the assertion that classifying based on tribal membership or eligibility for tribal membership, which the Indian Child Welfare Act does, is a racial classification. If the Supreme Court agrees with the plaintiffs on this point, the whole of Federal Indian Law could be called into question. Such an outcome could put the sovereignty of tribes through the United States at risk. But the tribes of Maine, given their unique history, could be impacted differently. This Note analyzes Brackeen and how various outcomes could impact Maine tribes.

First Page

369

Recommended Citation

Eloise Melcher, Five Times More Likely: Haaland v. Brackeen and What It Could Mean for Maine Tribes, 75 Me. L. Rev. 369 (2023).
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol75/iss2/6