Global Courant
WASHINGTON — The Supreme Court on Thursday awarded a major victory to Native Americans by rejecting a challenge to a federal law aimed at protecting children and strengthening tribal identity.
By 7 to 2, the court voted down a series of claims aimed at invalidating parts of the Indian Child Welfare Act enacted in 1978 to keep Indian children within tribes. Among the provisions in dispute was one that favors Native Americans seeking to adopt or adopt Native American children.
President Joe Biden said in a statement that the decision “maintains vital protection for tribal sovereignty and Indigenous children.”
The court, at a statement written by Judge Amy Coney Barrett, said the challengers had no legal authority to challenge whether the preference provisions violated the Equal Protection Clause of the 14th Amendment by discriminating on the basis of race.
Chad and Jennifer Brackeen with their two biological children and Zachary, center, a Native American boy at the center of a lawsuit, at home near Fort Worth, Texas, on May 31, 2019.Allison V. Smith for The New York Times via Redux file
Barrett wrote that the challengers sued the federal government, but noted that it is the state courts that enforce preferential provisions and state agencies place the children. Therefore, their claims could not be recovered from the federal government and had to be rejected, she said.
Emphasizing that the issue of racial discrimination is still undecided, conservative justice Brett Kavanaugh wrote in a concurring opinion that it is a “serious” question for the court to decide in a subsequent case.
However, the majority concluded that Congress has the authority to legislate on the issue of Native American family law and rejected the charges accordingly.
Barrett wrote that the challengers were seeking a “constitutional exception”, saying that Congress cannot legislate on family law, but that it has been clear since the founding of the United States that Congress has broad powers to legislate adopt on a wide range of issues.
“Family law is no exception,” she said.
The ruling will come as a great relief to tribes, who feared the court would weaken or completely scrap a law that plays an important role in preserving tribal identity.
“By ruling on the side of child health and safety, the U.S. Constitution and age-old precedents, the judges have landed on the right side of history,” said the leaders of the four tribes involved in the case, Cherokee Nation, Morongo Band of Mission. Indians, Oneida Nation and Quinault Indian Nation, said in a joint statement. Another tribe, Navajo Nation, also defended the law.
“Now that these latest political attacks on ICWA are behind us, we hope we can move on and focus on what’s best for our children,” the tribal leaders added.
The ruling also marks the second time this month that the court has rejected conservative efforts to rein in laws protecting minority groups, following last week’s ruling to reaffirm a key element of the Voting Rights Act. The court has yet to rule on another major race-related case in which it could end consideration of race in college admissions.
Two of the court’s six conservative justices, Clarence Thomas and Samuel Alito, disagreed.
Alito wrote that while Barrett said the law affected vulnerable children, the ruling “harms the rights and best interests of these children and their parents, as well as the division of federal and state authority in our Constitution.”
The law was enacted in response to a long history of Native American children disproportionately removed from their families by both states and the federal government in an effort to assimilate them into English-speaking, Anglo-centric society and loosen tribal ties.
The challengers are led by Chad and Jennifer Brackeen – a white evangelical Christian couple who wanted to adopt a Native American boy – as well as the states of Texas, Indiana and Louisiana. The couple adopted the child after a possible placement with a Navajo family fell through. They also try to adopt the child’s half-sister, known in court papers as YRJ, who lives with them.
Matthew McGill, an attorney representing the Brackeens, said he will pursue the racial discrimination claim in the adoption process in state court.
“Our biggest concern is what today’s decision means for the little girl, YRJ – now five years old – who has been part of the Brackeen family for most of her life,” he added.
The law was championed by the Biden administration and the Five Tribes. The tribes warned that removing provisions of the law based on racial discrimination would threaten centuries of legislation that treats Native American tribes as separate entities.
Both sides appealed to the Supreme Court after the New Orleans-based 5th US Circuit Court of Appeals issued a splinter decision in 2021 that divided judges on key issues. A district judge had previously ruled that the law was unconstitutional.
The Supreme Court has been sharply divided in two major recent cases on Native American issues. In 2020, the court expanded tribal authority in Oklahoma in a 5-4 ruling drafted by Judge Neil Gorsuch. But in a follow-up case last year to limit the impact of the earlier ruling, the court reversed course and ruled 5-4 to extend state power over tribes in certain cases.
Between the two rulings, Liberal Justice Ruth Bader Ginsburg, who had sided with the tribes in the 2020 case, died and was replaced by Barrett, creating the court’s current 6-3 Conservative majority. Barrett cast the deciding vote against the tribes in the second case, while Gorsuch joined the three liberal justices.
Gorsuch, who has proven himself a champion of Native American rights in a number of cases, noted in a concurring opinion how the court has often failed to do justice to tribes in the past.
“Often Indian tribes have come to this court seeking justice, only to leave with heads bowed and empty hands,” he wrote. “But that’s not because this court can’t bring them justice.”
