WASHINGTON (CN) — In a case that could upend tribal sovereignty, the Supreme Court on Wednesday will review the constitutionality of giving Native American families preference in adoptions involving Indian children.
Passed for the purpose of preserving indigenous culture, for the benefit of children and tribes, the Indian Child Welfare Act gives tribes exclusive jurisdiction over child-custody proceedings involving Indian children.
“ICWA is based on a simple idea: When Indian children can stay with their families and communities, Tribes and children alike are better off,” the Cherokee Nation, Oneida Nation, Quinault Indian Nation and Morongo Band of Mission Indians told the court in a brief.
Prior to passage of the act in 1978, tribes faced an existential threat because of 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-Native American families. These policies resulted in over one-third of Native children being separated from their families.
“If the wholesale removal of the next generation of tribal members continued, Tribes’ ability to continue as self-governing bodies — indeed, their survival — was at risk,” Ian Heath Gershengorn, an attorney with Jenner & Block representing the four tribes, wrote in their brief.
But this simple idea has now come under fire from two Republican-led states and three non-Indian couples who claim that civil rights forbid giving Native Americans preference over white families in adoptions.
“Race discrimination in child-placement proceedings — including a policy of placing children with parents of the same race — is presumptively unconstitutional,” Matthew McGill, an attorney with Gibson Dunn, wrote in the families’ brief.
The couples brought this case after ICWA created hurdles — and in one case prevented — their adoption of Native American children. Texas and Louisiana joined the families’ suit to claim Congress exceeded its power in enacting ICWA and that the law violates the anti-commandeering and nondelegation doctrines of the Constitution.
While a Texas federal judge struck down the law in 2018, ruling it race-based and outdated, the Fifth Circuit reversed. An en banc hearing of the case resulted in a fractured multi-opinion ruling striking down some parts of the law while upholding others. The Supreme Court took up the case in February.
At the high court, Texas claims ICWA is less of a solution to the problems of the past and more of a continuation of them.
“In theory, Congress passed ICWA to remedy wrongs inflicted by bad actors — including federal bad actors — more than half a century ago,” Texas Solicitor General Judd Stone II wrote in the states’ brief. “In practice, it replicates those wrongs.”
Similar to arguments earlier this term against affirmative action in college admissions, Texas says the government can stop discrimination only by not discriminating itself.
“A classic example of so called ‘benign’ discrimination, ICWA creates a government-imposed and government-funded discriminatory regime sorting children, their biological parents, and potential non-Indian adoptive parents based on race and ancestry,” Stone wrote. “Because this Court has recognized that ‘[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’ such methods violate equal protection.”
But tribes say the idea that ICWA discriminates using race is a fundamental understanding of the law and tribes’ sovereignty overall.
“These arguments mischaracterize foundational precedent and fundamentally misunderstand tribal self-government and sovereignty,” according to an amicus brief from nearly 500 federally recognized tribes and 62 tribal and Indian organizations. “ICWA, as well as Amici Tribes’ own child welfare codes, serve to protect these Tribes’ sovereign relationships with their children.”
The government views ICWA as the "gold standard" for child-custody practices because it created a model for keeping children within their families and communities. Warning the court not to overstep its authority, the government says the justices should respect Congress' directive.
"There is no basis for uprooting those long-settled practices and overturning Congress’s judgment concerning how best to protect Indian children, families, and tribes," U.S. Solicitor General Elizabeth Prelogar wrote in the government's brief. "To the contrary, '[p]roper respect for a coordinate branch of the government requires' that the Court refrain from invalidating an Act of Congress 'unless the lack of constitutional authority to pass [the] act in question is clearly demonstrated.'"
The tribes see ICWA as the backbone of federal tribal legislation and worry that, if it were dismantled, tribes’ sovereignty would be at risk.
“ICWA remains one of the most important pieces of federal Indian legislation ever enacted,” Erin Dougherty Lynch, an attorney with the Native American Rights fund, wrote in the brief for the amici tribes. “It has provided immense and lasting benefit to amici Tribes and tribal organizations and their collective goals in furthering tribal sovereignty and the best interests of Indian children.”
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