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WASHINGTON – The Supreme Court on Thursday let stand a 1978 law intended to end the mass removal of Native American children from their homes, declining to assess whether the law discriminated against non-Native families by giving preference to Native families for the adoption of Native children.
Justice Amy Coney Barrett wrote the decision for a 7-2 majority. Justices Clarence Thomas and Samuel Alito dissented.
Before Congress approved the Indian Child Welfare Act, hundreds of thousands of Native American children were removed from their homes by adoption agencies and placed with non-Native families or in boarding schools. Among other provisions, the law gave preference to Native families when Native children were up for adoption.
Case tracker:A look at the key cases pending before the Supreme Court
But the law was challenged by non-Native families who had sought to adopt Native American children and who said that preference was a racial one that violated the 14th Amendment. Leaders of several of the nation’s best-known tribes, joined by the Biden administration, argued the law’s requirements were based not on race but rather on the fact that Native American tribes are sovereign entities.
What the Supreme Court said about the ICWA
- Ruling: The majority ruled that the parties in the case lacked standing to bring the equal protection claim. Barrett wrote that Congress was well within its power to impose other requirements on states, which in other circumstances have the authority to deal with child custody proceedings without intervention by the federal government.
- Barrett: “Congress’s power to legislate with respect to Indians is well established and broad,” the justice wrote for the majority. The argument from non-Native families that the federal government rarely touches on state family law and so shouldn’t have done so with the Native law, she wrote, was a “non-starter.”
- Dissent: Thomas, in his dissent, said the majority “ignored the normal limits on the federal government’s power.” When Congress has “so clearly intruded upon a longstanding domain of exclusive state power, we must ask not whether a constitutional provision prohibits that intrusion, but whether a constitutional provision authorizes it.”
- Significance: Although the racial issues were decided on procedural grounds, the opinion Thursday marked the second time in as many weeks that the court, with broad majorities, has rejected the idea laws require “race neutral” outcomes. Last week, the court smacked down an argument for “color blind” redistricting in Alabama.
Biden praises Supreme Court decision, notes ‘painful’ history
President Joe Biden said Thursday that the decision keeps in place a “vital protection for tribal sovereignty and Native children.” The nation’s history, Biden said, “looms large over today’s decision.” In the not-so-distant past, he said, “Native children were stolen from the arms of the people who loved them.”
Several tribal leaders involved with the case, including Cherokee Nation Principal Chief Chuck Hoskin Jr., called the decision a “major victory for Native tribes, children, and the future of our culture and heritage.”
Matthew D. McGill, who argued the case on behalf of the non-Native families, said his main concern was for a 5-year-old girl who has been a part of a non-Native family “for nearly her whole life.”
“The court did not address our core claim that ICWA impermissibly discriminates against Native American children and families that wish to adopt them, saying it must be brought in state court,” McGill said, vowing that he would do exactly that.
How did the Native American adoption case arrive at SCOTUS?
The court’s three liberals − Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson − joined Barrett’s opinion, along with Chief Justice John Roberts and conservative Justices Neil Gorsuch and Brett Kavanaugh.
The appeal follows a deeply fractured opinion from the U.S. Court of Appeals for the 5th Circuit, which split evenly on several of the law’s provisions. The result upheld a federal district court’s determination that some provisions of the law are unconstitutional.
The Indian Child Welfare Act has in the past divided the Supreme Court in unpredictable ways. In 2013, a 5-4 majority sided with a 3-year-old girl’s non-Native adoptive parents over a claim made by her biological father, who was a member of the Cherokee Nation and had objected to the adoption after the fact. In an opinion written by Associate Justice Samuel Alito, the court ruled that a noncustodial parent could not invoke the law.
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