Supreme Court Closely Divided in Case on Native American Adoptions

New York Times

November 9, 2022

By Adam Liptak

In considering the constitutionality of the Indian Child Welfare Act, the justices explored congressional power and equal protection principles.

The Supreme Court heard more than three hours of arguments on Wednesday in a sprawling challenge to the constitutionality of the Indian Child Welfare Act of 1978, which makes it hard to remove Native American children from their tribes and heritage.

The decision in the four consolidated cases could have profound implications for the status of Native Americans in areas far beyond family law. Judging by the justices’ questioning, there was a fair prospect that the court would strike down at least part of the law.

Justice Neil M. Gorsuch, who has emerged as the court’s leading proponent of tribal rights, indicated strong support for the law, as did the court’s three liberal members. But it was not clear that those four justices would capture the fifth vote they would need to prevail.

In June, Justice Gorsuch dissented in a 5-to-4 decision that cut back on the sweep of an earlier ruling declaring that much of eastern Oklahoma falls within Indian reservations. He was joined at the time by the court’s liberal wing, and it seemed possible that Wednesday’s case would be decided along similar lines.

The law at issue in the new case was rooted in the sovereignty of Indian nations and a history of abusive child welfare practices involving Native American children. Before the law was enacted, hundreds of thousands of Native children were taken from their homes, sometimes by force, and placed in institutions or with families with no ties to their tribes.

“There is no getting around the fact that both federal and state history regarding Indian tribes carries a variety of very shameful and terrible elements,” said Judd E. Stone II, Texas’ solicitor general, who argued that the law was unconstitutional.

Family courts ordinarily base their decisions on the best interests of the child before them. The 1978 law said that where Native American children are concerned, those interests include protecting their relationships with their tribes.

When Native American children live on tribal land, tribal courts handle child custody cases. When cases involving such children are heard in state court, the 1978 law says that judges should take account of a series of preferences “in the absence of good cause to the contrary.”

Native American children, the act says, should if possible be placed with a member of their extended family. Failing that, they should be placed with another member of their tribe. And failing that, they should be placed with “other Indian families.”

That third preference was the subject of many questions.

Justice Brett M. Kavanaugh said the court would not allow “Congress to say that white parents should get a preference for white children in adoption or that Latino parents should get a preference for Latino children in adoption proceedings.”

Justice Amy Coney Barrett said that the third preference “is just treating Indian tribes as fungible.”

Chief Justice John G. Roberts Jr. asked Ian H. Gershengorn, a lawyer for tribes that had intervened to defend the law, whether it “incorporates the familiar best interests of the child inquiry that are applied in family courts throughout the country.”

Mr. Gershengorn responded that “I think I would have to say the answer to that is no,” adding that “Congress made the judgment that the best interest standard was being applied in a way that resulted in unwarranted removals.”

Three states — Texas, Louisiana and Indiana — and seven people sued the federal government to challenge the law. They made two basic arguments: that Congress lacked the power to enact it and that it violated equal protection principles by drawing distinctions based on race.

Justice Gorsuch questioned both arguments. He said the Constitution gave Congress the power and the duty to enact laws protecting the sovereignty of Indian tribes.

“I guess I’m struggling to understand,” he said, “why this falls on the other side of the line when Congress makes the judgment that this is essential to Indian self-preservation.”

Justice Ketanji Brown Jackson said that Congress was entitled to address the issue.

“Congress said things like there’s no resource that is more vital to the continued existence and integrity of Indian tribes than their children,” she said. “They constantly cast regulations regarding children, Indian children, as a matter of tribal integrity, self-governance, existence.”

Justice Gorsuch added that the distinctions in the law were based on political considerations, not racial ones, as the tribes are sovereign entities. “How is this an invidious racial classification rather than a political classification?” he asked.

Justice Kagan agreed. “When you regulate the tribes,” she said, “you’re regulating political entities.”

Matthew D. McGill, a lawyer for the people challenging the law, said the children at issue had made no political choices.

“They are human beings,” he said. “They are citizens of the United States and the states in which they reside. They are persons within the meaning of the Fifth Amendment. And they have liberty interests that the tribe cannot override simply by unilaterally enrolling them.”

Justice Kavanaugh said the case concerned a clash of two sets of values. On the one hand, he said, there was “the great respect for tribal self-government” and “recognition of the history of oppression and discrimination against tribes and people.”

On the other, he said, there was “the fundamental principle we don’t treat people differently on account of their race or ethnicity or ancestry.”

The challengers mostly prevailed before a federal trial court and a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans. The full Fifth Circuit reheard the case, issuing a fractured decision that caused both sides to seek Supreme Court review. The Supreme Court granted review in four appeals, including Haaland v. Brackeen, No. 21-476.

Justice Samuel A. Alito Jr. said the limits of Congress’s power over Indian tribes presented baffling issues. “Honestly,” he said, “I don’t know how to analyze this question.”