The Supreme Court on Thursday left intact a decades-old law that prioritizes the placement of Native American children with Native families or tribes in child custody proceedings, rejecting challenges brought by several adoptive parents.
The law was passed in 1978 to protect tribal sovereignty after Congress documented the alarmingly high number of children with Native American ancestry being placed with non-Native families or institutions in state child welfare and private adoption proceedings.
The 7-2 decision backs the law passed in the wake of decades of hostility on the part of the federal government when it comes to child custody issues and traditional values of Indian tribes.
Justice Amy Coney Barrett, writing for the majority, said Congress did not exceed its authority in passing the law.
“In a long line of cases we have characterized Congress’ power to legislate with respect to the Indian tribes as plenary and exclusive,” she wrote.
“Congress’s power to legislate with respect to Indians is well established and broad,” Barrett wrote, but acknowledged that the court’s precedent in the area has been “unwieldy.”
She noted that in general, Congress lacks a general power over domestic relations, but that the Constitution does not erect a “firewall around family law.”
She was joined by Chief Justice John Roberts, and Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson.
The case pitted the interest of Native American tribes, who said their existence as sovereign nations was on the line, against non-Native couples seeking to foster or adopt children with Native ancestry.
The opinion, which is a defeat for the couples who challenged the law, upheld a lower court’s ruling that the law is consistent with Congress’ authority.
President Joe Biden praised Thursday’s decision.
“Today’s decision from the Supreme Court keeps in place a vital protection for tribal sovereignty and Native children,” Biden said in a statement.
“Our Nation’s painful history looms large over today’s decision,” Biden added. “In the not-so-distant past, Native children were stolen from the arms of the people who loved them. They were sent to boarding schools or to be raised by non-Indian families – all with the aim of erasing who they are as Native people and tribal citizens. These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations. The Indian Child Welfare Act was our Nation’s promise: never again.”
Gorsuch: ‘Our Constitution reserves for the Tribes a place … in the structure of American life’
Gorsuch, who was largely raised in the West, often sides with Indian tribes in disputes that reach the high court. On Thursday, he wrote an opinion concurring with the majority to underline the importance of the law to the tribes, a ringing endorsement of tribal sovereignty.
“Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands,” Gorsuch wrote. “But that is not because this Court has no justice to offer them.”
“Our Constitution reserves for the Tribes a place – an enduring place – in the structure of American life,” he said, adding that it “promises them sovereignty for as long as they wish to keep it.”
“In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history,” he said.
A coalition of the tribes that defended the law praised the majority decision on Thursday, saying in a statement that it’s “a major victory for Native tribes, children, and the future of our culture and heritage.”
“It is also a broad affirmation of the rule of law, and of the basic constitutional principles surrounding relationships between Congress and tribal nations,” the tribes said. “We hope this decision will lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long.”
Thomas and Alito dissent
Conservative Justices Clarence Thomas and Samuel Alito dissented in the case but did not join each other’s opinions.
Thomas took issue with the federal government’s attempt to regulate child welfare proceedings normally left to state courts. He said the law “ignored the normal limits on the Federal Government’s power and prescribed rules to regulate state child custody proceedings in one circumstance: when the child involved happens to be an Indian.”
“When Congress has so clearly intruded upon a longstanding domain of exclusive state powers, we must ask not whether a constitutional provision prohibits that intrusion, but whether a constitutional provision authorizes it,” he said. He called the majority’s justifications a “smorgasbord of constitutional hooks” and said “not one of them works.”
Alito concerned himself with the actual welfare of the children seeking new homes. He said that decisions about child custody, foster care and adoption proceedings are “core state functions” and that the “primary concern” should be the best interests of the child. He zeroed in on one adoptive family seeking to adopt a child with Native heritage that has lived with the couple for over a year. He noted that the child has developed a strong bond with the family, but the adoption was initially blocked even though the child’s biological parents, his grandmother, court-appointed guardians and a psychological expert all supported it.
He said that while he was “sympathetic” to the challenges that tribes face in maintaining members and preserving their cultures, “the Constitution does not permit Congress to displace long-exercised state authority over child custody proceedings to advance those interests at the expense of vulnerable children and their families.”
Law was meant to correct past government abuses
The Indian Child Welfare Act was enacted as a response to serious harms caused by widespread child welfare practices that resulted in the separation of Indian families, and adoption or foster placement in non-Indian homes.
It was passed in part to rectify past government programs that resulted in abuse and the breakup of Indian families and applies to children living off-reservation who are involved in custody disputes in state courts. A provision of the law requires any party seeking an Indian child’s removal from the tribe to give notice to the child’s parent (or custodian) or tribe. It establishes standards for the placement of Indian children in foster homes that require a preference be given “absence of good cause to the contrary” with a member of the child’s extended family, other members of the child’s tribe or other Indian families.
A lawyer for the private individuals had argued that the law discriminated on the basis of race in violation of the Constitution and does not serve the best interest of the child.
Barrett focused her opinion on whether Congress exceeded its authority in passing the law. She dismissed an Equal Protection challenge to the placement preferences, holding that the families seeking to adopt did not have the “standing,” or legal authority, to bring those challenges because they could not show a close enough nexus between their alleged injury and the federal officials’ whose enforcement of the statute they were seeking to block.
In addition, Texas had sought to challenge the preferences arguing that they interfered with state adoption proceedings. But Barrett said the state couldn’t sue on behalf of its citizens in this instance. “Were it otherwise, a State would always have standing to bring constitutional challenges when it is complicit in enforcing federal law,” she said.
Matthew D. McGill, a lawyer for the private individuals, had stressed that the law deprives Indian children – some 11,000 who were in foster care in 2020 – of an adoption that could be in the child’s best interest. He challenged the law on a variety of grounds, arguing that Congress lacked the authority to pass the law because its powers relating to Indian affairs has limitations. He said the law violates the Constitution’s Equal Protection Clause because any classification by race has to survive strict scrutiny in the courts.
McGill had the support of Texas Solicitor General Judd E. Stone II, who told the justices that “Congress cannot require states to administer a nationwide child custody regime” and said that the law can, at times, return children to unsafe environments, and contributes to high statistics concerning Indian child welfare. He pushed back on any notion that the state does not have the legal injury necessary to bring the case by arguing that if a state fails to comply with the law it could lose substantial amounts of Medicare payments.
McGill said Thursday that a “main concern” was for a 5-year-old girl of Native heritage – known in court papers as “Y. R. J.” – who has lived with the named plaintiff, the Brackeen family, “for nearly her whole life.”
He continued: “The Court did not address our core claim that ICWA impermissibly discriminates against Native American children and families that wish to adopt them, saying it must be brought in state court. As Justice Kavanaugh observed today, that equal protection claim is ‘serious,’ and we will ask the state court to address it in the Brackeens’ upcoming trial to adopt Y.R.J.”
Twenty-five states – home to 86% of federally recognized Indian tribes – filed a friend-of-the-court brief in favor of the law. “As state sovereigns,” they argued in briefs, “we also have a powerful interest in mutually beneficial relationships with Indian tribes in our states – who share our interest in the wellbeing of Indian children.”
Challengers to the law won at the district court level. A federal appeals court reversed the decision, but agreed to hear the case with a larger number of judges. That court issued a fractured opinion striking part of the law.
Ian H. Gershengorn, a lawyer for the tribes, had defended the law by reiterating to the Supreme Court that Congress has “plenary power” over Native Americans.
“Since the founding, the health and safety of Indian children has been the province of the federal government and tribes, not the states,” he told the justices.
“Congress enacted ICWA because Indian children were being torn from their families and tribes through the operation of state family law in state courts,” Gershengorn said.
This story has been updated with additional developments.
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