The matter originally came up in a Texas District Court on an adoption petition filed by Chad and Jennifer Brackeen.

After their effort was challenged by the Navajo Nation, the Brackeens brought suit in the U.S. District Court in Fort Worth.

The full court, on rehearing the case en banc, held that parts of the law, that set federal standards for lower and state courts, were constitutional, but that the parts of the law that required state agencies to perform certain acts were unconstitutional as a violation of the Tenth Amendment.

In 1978, the Congress enacted a law to protect American Indian children from removal from their tribes to be adopted by non-Indians.

[3][4] This was often not in the best interest of the child, but for racial reasons, with "programs that took Native American children from their homes and placed them into boarding schools as part of a targeted process of assimilation.

Though the Librettis were able to adopt the child, they joined a lawsuit challenging ICWA, stating that the law had violated their constitutional rights.

However, in January 2017, as the Cliffords were preparing to adopt the child, the tribe intervened, saying that they had lacked relevant information when they had found her to be ineligible.

[19] Attorney Kathryn Fort was officially admitted pro hac vice on June 20, 2018 along with the Indian Law Clinic took the initiative to intervene in the case.

The primary objective behind their intervention was to ensure that the Native voices were heard and represented fairly when the court ultimately decided the case.

[fn 2][23] The Tigua Pueblo tribe intervened in the Nevada state court proceedings, but agreed not to contest the adoption in late 2018.

[23] The Cliffords (Jason and Danielle) had attempted to adopt a child whose grandmother was a member of the White Earth Band of the Ojibwe Tribe in Minnesota.

[fn 3][26] In 2018, Judge O'Connor issued an order finding that: 1) ICWA's mandatory placement preferences violated equal protection; 2) provision of ICWA granting Indian tribes authority to reorder congressionally enacted adoption placement preferences violated non-delegation doctrine; 3) ICWA provision requiring states to apply federal standards to state-created claims commandeered the states in violation of the Tenth Amendment; 4) Bureau of Indian Affairs (BIA) exceeded its statutory authority in promulgating regulations, in violation of the Administrative Procedure Act (APA); 5) BIA regulations were not entitled to Chevron deference; and 6) prospective and adoptive parents whose adoptions were open to collateral attack under ICWA had no fundamental right to care, custody, and control of children in their care.

[31] Dennis ruled that although the Brackeens and other plaintiffs had standing to sue,[32] the District Court erred by considering this to be a race-based law.

This was based on the Supremacy Clause, and the panel concluded that ICWA did not commandeer the agencies, but merely regulated the adoption and placement of Indian children.

[42] The court unanimously ruled that at least one party had standing to bring the suit,[43] and a majority held that Congress had the authority to enact the ICWA.

[45] It did however, in a non-precedental holding, determine that the adoptive placement and preference for an "Indian foster home" did violate equal protection.

[fn 6][50] The Supreme Court consolidated the other three cases into Deb Haaland, Secretary of the Interior, et al. v. Chad Everet Brackeen, et al., allotting one hour for oral argument.

[51] The Brackeens and the other two non-Native American couples were represented pro bono by Matthew D. McGill of Gibson Dunn.

"[55] Justice Sonia Sotomayor immediately questioned that position, pointing out a list of laws governing Indians since the late 1700s.

[57] The Slip Opinion, published June 15, 2023, affirmed the judgment of the 5th Circuit Court of Appeals regarding Congress's constitutional authority to enact the ICWA.

Justice Kavanaugh also filed a brief concurrence to emphasize his concern over the Equal Protection claim raised by the petitioners which was not addressed by the Court for lack of standing given the federal context.

[fn 7][62] Kathryn Fort commented in a Propublica article published after SCOTUS upheld the Indian Child Welfare Act.