(The Hill) — The Supreme Court on Wednesday heard a clash over a federal law that gives preference to Native American families and tribes over non-Natives when deciding custody proceedings involving Native children.
For more than three hours of argument, the court grappled with a challenge to the Indian Child Welfare Act (ICWA), a federal law Congress passed more than 40 years ago to combat the once-common practice of forcibly separating Native American children from their families and tribes.
It was not readily apparent how the court would rule in the case based on the justices’ questions. But the dispute seemed likely to create a split among the court’s six conservatives, with Justice Neil Gorsuch, who is generally sympathetic to Native rights claims, appearing aligned with the court’s three liberals in viewing the federal statute as lawful.
At issue in the case is ICWA’s approach to adoptions. The law generally requires that Native children residing off tribal lands be placed with members of their extended family or tribe, followed by a preference for outside tribes, where possible, before considering non-Native candidates.
Early into the argument, Gorsuch took to task the lawyer for the private challengers for spending much of his argument on what Gorsuch described as “policy complaints.”
“The policy arguments might be better addressed across the street,” Gorsuch said, referring to Congress, before grilling the lawyer over whether his clients have legal standing to sue.
The court’s newest members, conservative Justices Brett Kavanaugh — who described the dispute as a difficult case — and Amy Coney Barrett, expressed concerns over whether aspects of the law violate equal-protection and states’ rights principles, though they did not clearly telegraph how they might ultimately rule in the case.
The court’s most senior conservatives — Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito — appeared skeptical of the law on various grounds, returning repeatedly to the question of what limits constrain Congress’ power to legislate in the area of Native American affairs.
Roberts also expressed concern over the treatment of adopted children who fall under ICWA’s sweep, saying the law could lead to scenarios where “the best interest of the child would be subordinated” to the interests of non-family members of a tribe.
The consolidated cases involve several white couples who sought to adopt Native children and sued over ICWA. Among the plaintiffs are a Texas couple, Chad and Jennifer Brackeen, who are fighting for custody of a 4-year-old girl, known in court records only as Y.R.J., who was born to a Navajo mother and placed in state foster care shortly after her birth.
As the cases unfolded in the lower courts, additional plaintiffs including the state of Texas joined. On the other side, the Justice Department argued in defense of the law, with the support of several tribes that intervened in the case.
Among Texas’s arguments is the claim ICWA amounts to excessive federal overreach into state adoption policy. The challengers also say the law’s provision giving preference to Native American adoptive parents over non-Native parents amounts to a race-based classification that violates the Constitution’s Equal Protection Clause.
The tribes, for their part, argue that they constitute political entities, not racial groups.
Justice Elena Kagan, one of the court’s liberals, appeared to embrace the tribes’ assertion. She noted that the court’s precedents have viewed tribes along political, rather than racial lines, with the exception of one case that seemed not directly relevant.
“What do you do with this long line of cases, which has consistently said when you regulate the tribes to regulate and political entities?” Kagan said to the lawyer for the private challengers.
One issue that appeared to trouble Kavanaugh and other conservatives is the law’s preference for outside tribes which children are not members of — which the court continually referred to as the “third preference.”
Ian Gershengorn, who argued on behalf of the tribes, said that the third preference typically applied in cases where “individual Indians live on the reservation of another.”
“This is not some random tribe plucked from the ether that all of a sudden gets a preference,” he said. Gershengorn said it was a far-flung hypothetical scenario to imagine a tribe in Maine receiving preference over a child in Arizona. “That case has never happened that we’ve been able to find or that counsel on the other side has been able to find.”
Passage of the law governing Native American adoptions arose in response to the frequent separation of Native children from their families and communities by state child welfare and private adoption agencies.
According to research conducted around the of ICWA’s passage, around 25 to 35 percent of all Native children were removed from their families and placed either into foster homes or with adoptive families or other institutions. Among Native children in foster care, roughly 85 percent were in non-Native homes, according to a 1969 survey of 16 states.
Edwin Kneedler, deputy solicitor general, argued in defense of the law on behalf of the Biden administration.
“Over the more than 40 years since its enactment, ICWA has furnished vital protections against those practices and has become integrated in state child welfare practices,” he said. “There is no basis for uprooting those practices or for overturning Congress’s considered judgment and enacting ICWA.”
A decision in Haaland v. Brackeen is expected by this summer.