The US Supreme Court rejected a sweeping challenge to a 1978 law that gives preference to Native Americans in adopting and fostering American Indian children.
(Bloomberg) — The US Supreme Court rejected a sweeping challenge to a 1978 law that gives preference to Native Americans in adopting and fostering American Indian children.
Voting 7-2, the court said Congress has broad authority over Native American affairs, rejecting contentions that the Indian Child Welfare Act exceeds Congress’ power and unconstitutionally intrudes on state authority.
“Congress’s power to legislate with respect to Indians is well established and broad,” Justice Amy Coney Barrett wrote for the court.
The justices also said the challengers — Texas, three non-Native couples and the biological mother of an American Indian child – didn’t have legal standing to press some of their arguments. Those included a constitutional challenge to a provision that gives preference to other Native American families if a child can’t be placed with family or with a member of the child’s tribe.
Justices Samuel Alito and Clarence Thomas dissented. Thomas pointed to “ICWA’s patent intrusion into the normal domain of state government and clear departure from the federal government’s enumerated powers.”
Alito said the decision “disservices the rights and interests” of Native American children and violates the Constitution’s “division of federal and state authority.”
President Joe Biden hailed the ruling. “Today’s decision from the Supreme Court keeps in place a vital protection for tribal sovereignty and Native children,” he said in a statement.
Congress enacted ICWA amid rising concern that American Indian children were being removed from their families and placed in non-tribal adoptive homes, foster care and institutions. Studies presented to Congress indicated that as many as 35% of all Native children were being separated from their families.
Lingering Issue
In a concurring opinion, Justice Neil Gorsuch said the decision “safeguards the ability of tribal members to raise their children free from interference by state authorities or other outside parties.”
The challengers said ICWA is riddled with constitutional problems. They argued that Congress overstepped its authority to regulate commerce involving tribes, illegally commandeered state officials to administer the federal law and gave too much power to tribes to adjust the placement preferences.
One member of the majority, Justice Brett Kavanaugh, wrote separately to say the challengers had raised a “serious” argument that the law violates the Constitution’s equal protection clause by potentially denying placements based on a child’s race.
“Ultimately, this court will be able to address the equal protection issue when it is properly raised by a plaintiff with standing — for example, by a prospective foster or adoptive parent or child in a case arising out of a state-court foster care or adoption proceeding,” Kavanaugh wrote. No other justice joined Kavanaugh’s opinion.
The families challenging the law included Chad and Jennifer Brackeen, a White couple from Texas seeking to adopt a Navajo Nation girl after adopting her brother. The tribe sought Navajo placements for the girl.
No Standing
In saying the families lacked standing, Barrett said it will be state officials that implement ICWA in the individual cases, not the federal officials the families sued.
“Enjoining the federal parties would not remedy the alleged injury, because state courts apply the placement preferences, and state agencies carry out the court-ordered placements,” Barrett wrote.
Matt McGill, the lead lawyer representing the families, said the Brackeens will ask a state judge to address the equal protection issue when their adoption case goes to trial.
“Our main concern is what today’s decision means for the little girl, Y.R.J. — now five years old — who has been a part of the Brackeen family for nearly her whole life,” McGill said in an emailed statement.
A group of tribes including the Cherokee Nation helped defend the law. They called the ruling “a major victory for Native tribes, children, and the future of our culture and heritage.”
The lead case is Haaland v. Brackeen, 21-376.
(Updates with reaction starting in seventh paragraph.)
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