The Supreme Court upheld by 7–2 a racially discriminatory adoption law aimed at preventing non-Indian families from adopting Native American children.
Conservative Justices Clarence Thomas and Samuel Alito dissented from the new ruling in Haaland v. Brackeen (court file 21-376) which was consolidated with three other related cases. U.S. Secretary of the Interior Deb Haaland is the petitioner.
The June 15 decision is a victory for the Biden administration, which argued in favor of the Indian Child Welfare Act (ICWA), which was enacted by Congress in 1978 to prevent non-Indian families from adopting Native American children. The statute was a reaction to perceived historical injustices and concerns that Indian children were being removed from their traditional homes and Indian culture and placed in homes that had no connection to their culture. The Bureau of Indian Affairs used to pay states to carry out the adoptions.
The Indian tribes had argued that the statute was concerned with the political status of Native Americans, as opposed to their race, and that Congress’s determination that the ICWA was needed to assure the continued existence of the tribes ought to be respected.
The ICWA generally requires that Native children living outside of tribal lands be placed with members of their extended family or tribe; failing that, they are to be placed with outside tribes. If none are available, non-Indian families become eligible to adopt.
Respondents Chad and Jennifer Brackeen, a white evangelical Christian couple in Texas, tried to adopt a Native American child. An appellate court upheld the ICWA, finding that Indian families are entitled to enjoy preference in the adoption process.
The Brackeens argued that the ICWA denied them their constitutional right to equal protection.
The ICWA isn’t working, the Brackeens’ attorney, Matthew D. McGill, told the justices during oral arguments on Nov. 9, 2022.
Although in 2020 there were over 11,000 Native American children in state foster care, “there are fewer than 2,000 Native American foster homes,” McGill said at the time.
“That means each year hundreds, if not thousands, of Indian children are placed in non-Indian foster homes, and sometimes there they bond with those families. Yet, when those families try to adopt those children, ICWA rears its head for a second time, allowing tribes to play the proverbial ICWA trump card at the eleventh hour,” the lawyer said.
The statute is being used against the Brackeens for a second time as they try to adopt a child identified as Y.R.J. They are being “asked to show good cause to overcome the placement preferences” of the law, instead of demonstrating what is in the best interests of the child, McGill said.
Because of the ICWA, “not even Y.R.J.’s deep attachment to the Brackeens after being part of their family for four years is sufficient. For both that child and her family, this flouts the promise of equal justice under the law.”
Joining the challenge to the federal law were other individuals, along with three states, including Texas.
“We have also noted that principles inherent in the Constitution’s structure empower Congress to act in the field of Indian affairs.”
“At the founding, ‘Indian affairs were more an aspect of military and foreign policy than a subject of domestic or municipal law.’ … With this in mind, we have posited that Congress’s legislative authority might rest in part on ‘the Constitution’s adoption of preconstitutional powers necessarily inherent in any Federal Government, namely, powers that this Court has described as ‘necessary concomitants of nationality.’”
“Finally, the ‘trust relationship between the United States and the Indian people’ informs the exercise of legislative power. … As we have explained, the Federal Government has ‘charged itself with moral obligations of the highest responsibility and trust’ toward Indian tribes,” Barrett wrote, citing previous precedents.
The Supreme Court affirmed the judgment of the U.S. Court of Appeals for the 5th Circuit “regarding Congress’s constitutional authority to enact ICWA,” but vacated the part of the circuit court’s decision that dealt with equal protection claims and remanded to that court “with instructions to dismiss for lack of jurisdiction.”
Justice Thomas rejected the reasoning of the majority, writing in a 39-page dissenting opinion that the ICWA was unconstitutional.
“The Constitution confers enumerated powers on the Federal Government. Not one of them supports ICWA,” he wrote.
“Nor does precedent. To the contrary, this Court has never upheld a federal statute that regulates the noncommercial activities of a U.S. citizen residing on lands under the sole jurisdiction of States merely because he happens to be an Indian.
“But that is exactly what ICWA does: It regulates child custody proceedings, brought in state courts, for those who need never have set foot on Indian lands. It is not about tribal lands or tribal governments, commerce, treaties, or federal property.
“It therefore fails equally under the Court’s precedents as it fails under the plain text and original meaning of the Constitution.”
Justice Alito wrote a separate dissenting opinion.
Although the majority opinion states that this case is “about children who are among the most vulnerable,” after “that opening nod, the Court loses sight of this overriding concern and decides one question after another in a way that disserves the rights and interests of these children and their parents, as well as our Constitution’s division of federal and state authority,” the justice wrote.
In many cases, ICWA provisions “compel actions that conflict with this fundamental state policy, subordinating what family-court judges—and often biological parents—determine to be in the best interest of a child to what Congress believed is in the best interest of a tribe.”
The National Indian Child Welfare Association, based in Portland, Oregon, hailed the court’s majority decision.
“We are overcome with joy that the Supreme Court has upheld the Indian Child Welfare Act (ICWA), which is widely regarded as the gold standard of child welfare. To fully understand the implications of this decision, we are conducting a thorough legal review and will provide in-depth analysis this afternoon.
“One thing is certain: ICWA is crucial for the safety and well-being of Native children and families and the future of Native peoples and Tribal Nations. The positive impact of today’s decision will be felt across generations.”
