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Adoption case divides justices and leaves tribal sovereignty on knife’s edge

Tribes contend that giving their members preference in the adoption of Indian children is not a matter of race but political standing.

WASHINGTON (CN) — A decades-old law governing the adoption of Native American children is on thin ice Wednesday after scrutiny by the Supreme Court. 

The Indian Child Welfare Act was sponsored in response to the systematic separation of children from tribes, as state and federal agencies placed Native American children in boarding schools or foster care with mostly white, non-Indian families. Before ICWA’s passage in 1978, over one-third of Native children were separated from their families, resulting in an existential threat to tribes’ survival. Today the law gives tribes exclusive jurisdiction over child-custody proceedings involving Indian children.

At arguments in Washington, however, a slim majority of the justices seemed to doubt whether such preferential placement in adoptions is constitutional. The law appeared to split the conservative block.

Justice Neil Gorsuch joined the liberal justices in support of upholding ICWA, emphasizing its importance to tribal sovereignty. While arguments against the law said it discriminates based on race, Gorsuch said ICWA is actually about the tribes as political bodies. 

“How is this an invidious racial classification rather than a political classification,” the Trump appointee asked. “Tribes are mentioned in the Constitution. And, in fact, we have the treaty power, which mentions tribes as separate, indicates that they’re separate sovereigns.” 

Viewing arguments against ICWA as policy-based, Gorsuch said challengers to the law would be better off taking their complaints to Congress. 

“The policy arguments might be better addressed across the street,” Gorsuch said. 

Expressing a similar sentiment, Justice Elena Kagan wondered if courts should even wade into the issue. 

“The point is courts don’t know enough, really,” the Obama appointee said. “This is a matter for Congress, isn’t it? It’s not a matter for the courts to decide whether ICWA does these terrible things or whether ICWA doesn’t do any of them. Isn’t that really Congress’ judgment that we’re supposed to respect?” 

Justice Ketanji Brown Jackson said the framers intended the federal government’s power to supersede states on the issue of tribes. 

“What I’m mostly concerned about,” the Biden appointee said, "is that we might be taking it upon ourselves to weigh those interests, where really our role should be thinking about what the framers intended with respect to the scope of Congress' authority as it regards Indian affairs and what Congress believed was necessary to protect Indians, give that exercise of authority."

The challenge to ICWA is led by three non-Indian couples who faced hurdles adopting Native American children. The couples say ICWA discriminates based on race. The are joined by Texas and Louisiana, which also contend that the law exceeded Congress' authority and violates the anti-commandeering and nondelegation doctrines of the Constitution. 

“According to the federal government, in 2020, there were over 11,000 Native American children in state foster care,” said Matthew McGill, an attorney with Gibson Dunn representing the couples. “The Indian Child Welfare Act deprives Indian children of the best-interests-of-the-child test. It replaces that test with a hierarchy of placement preferences that puts non-Indian families at the bottom of the list.” 

Texas claims ICWA places significant burdens on the state, and it cannot be forced to comply because Congress exceeded its authority when enacting the law. 

“Congress cannot require states to administer a nationwide child custody regime,” Texas Solicitor General Judd Stone II said.

The case has had mixed results over the years, beginning with a Texas federal judge who struck down the law in 2018. While the Fifth Circuit initially reversed that judgment, an en banc hearing resulted in a fractured multi-opinion, setting up a Supreme Court showdown. 

The government focused its arguments on the protections ICWA presented to tribes and said a ruling against the law would undermine Indian jurisprudence. 

“ICWA, in fact, is a valid exercise of Congress's power over Indian affairs in several respects,” Deputy U.S. Solicitor General Edwin Kneedler said. “That power is grounded in the text of the Constitution, including the Indian Commerce Clause. It is grounded as well in the constitutional structure in which Indian tribes occupy a unique status as dependent sovereigns to which the United States owes a duty of protection.” 

The tribes have underscored that the responsibility the government owes to the health and safety of tribes goes back to the nation's founding. Ian Gershengorn, an attorney for them with Jenner & Block, rejected the argument that ICWA classified children by race, saying the law instead concerns political standing.

“ICWA draws distinctions that are political three times over; it applies only to tribes that the federal government has recognized, it incorporates membership criteria established by sovereign tribes, and it relies on the political decisions of parents to remain tribal members,” Gershengorn told the justices Wednesday.

These arguments appeared unsuccessful, however, at swaying the majority of the conservative wing. Justice Brett Kavanaugh related these challenges to a case the court heard last week challenging the use of race in admissions. Justice Clarence Thomas appeared inclined to create a divide between Congress’ regulation of tribes and regulating people. 

“Is there a difference between regulating a tribe or tribal affairs and regulating someone who happens to be Indian,” Thomas asked. 

Experts say Wednesday’s arguments will leave tribes on edge while considering the possible implications of a ruling in the case. 

“Native American Tribes looking for five justices leaning towards upholding ICWA will be disappointed,” Ben Kappelman, a partner at Dorsey & Whitney, said in a statement.

“Tribes will be on edge about the potential sweeping implications of this case until it is decided.”

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