WASHINGTON (CN) — The Supreme Court averted a blow to tribal sovereignty Thursday in upholding a law that governs the adoption of Indian children.
“This case is about children who are among the most vulnerable: those in the child welfare system,” Justice Amy Coney Barrett wrote for the 7-2 majority.
Backing the Indian Child Welfare Act, the majority rejected a challenge from adoptive families who consider the law discriminatory.
“The issues are complicated — so for the details, read on,” Barrett wrote. “But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.”
Justice Neil Gorsuch — who once presided in the 10th Circuit and is known for his support of tribal sovereignty — wrote a concurring opinion with historical context that he says is important to understand the gravity of the case. Justices Sonia Sotomayor and Ketanji Brown Jackson each joined in sections of the opinion.
“In affirming the constitutionality of the Indian Child Welfare Act, the Court safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties,” Gorsuch wrote. “In the process, the Court also goes a long way toward restoring the original balance between federal, state, and tribal powers the Constitution envisioned. I am pleased to join the Court’s opinion in full.”
President Joe Biden said he stands with tribal nations that will celebrate the court's endorsement of a vital law.
"The Indian Child Welfare Act safeguards that which is most precious to us all — our children," Biden said in a statement. "Today’s decision from the Supreme Court keeps in place a vital protection for tribal sovereignty and Native children."
Noting the nation's history of native adoptions, Biden said ICWA stands as a promise to tribes.
"These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations," Biden said. "The Indian Child Welfare Act was our Nation’s promise: never again."
Congress passed the Indian Child Welfare Act in 1978 in an attempt to preserve indigenous culture as well as Native American children and tribes. Lawmakers gave tribes almost exclusive jurisdiction over child-custody proceedings involving Indian children, after decades of policy decisions that separated Native American families. Prior to ICWA, the systematic work of state and federal agencies to separate children from tribes resulted in over one-third of Native children being removed from their families.
In the almost 50 years since ICWA was enacted, the law has become the gold standard for child-custody practices. The government used ICWA as a model to keep children within their own families and communities.
“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 during oral arguments in November. “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.”
Not everyone agrees the law is fair. Non-Indian couples who tried to adopt Native children sued the government, claiming ICWA discriminates against white families.
“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,” Ian Gershengorn, an attorney with Jenner & Block, told the justices during arguments for the families.
The couples were joined by two Republican-led states that claim Congress went beyond its authority when enacting the law, violating the anti-commandeering and nondelegation doctrines of the Constitution.
“Congress cannot require states to administer a nationwide child custody regime,” Texas Solicitor General Judd Stone II said during arguments.
A Texas federal judge struck down ICWA in 2018. The Fifth Circuit initially reversed but the ruling was vacated in favor of an en banc hearing. A fractured multi-opinion resulted in 2021, leaving the justices to have the final word on the law's survival.
While the couples positioned ICWA as an overstep in legislative authority, Barrett said court precedent demonstrates Congress’ jurisdiction on the matter.
“Our cases leave little doubt that Congress’s power in this field is muscular, superseding both tribal and state authority,” the Trump appointee wrote.
Refusing to reach the merits of the constitutional arguments, Barrett said the families and Texas did not have standing to bring those claims.
“Article III requires a plaintiff to show that she has suffered an injury in fact that is ‘'fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief,’” Barrett wrote. “Neither the individual petitioners nor Texas can pass that test.”
Justice Clarence Thomas balked at the court’s interference in what he saw as a state issue. He said the Constitution gives the federal government enumerated powers, but all other authority rests with the states. Thomas describes the majority’s reasoning as a “smorgasbord of constitutional hooks” that don't pass muster.
“These cases concern the Federal Government’s attempt to regulate child-welfare proceedings in state courts,” the Bush appointee wrote. “That should raise alarm bells.”
In a separate dissenting opinion, Justice Samuel Alito acknowledged Congress’ authority to regulate Indian affairs but said that power was not unlimited.
“I am sympathetic to the challenges that tribes face in maintaining membership and preserving their cultures. … The Constitution provides Congress with many means for promoting such interests,” Alito wrote. “But the Constitution does not permit Congress to displace long-exercised state authority over child custody proceedings to advance those interests at the expense of vulnerable children and their families.”
In presenting the history of tribal sovereignty, Gorsuch says it is easy to understand why ICWA must be upheld. He remarked that tribes often leave the high court disappointed with the justices’ ruling.
“Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands,” Gorsuch wrote. “But that is not because this Court has no justice to offer them.”
Gorsuch said the Constitution promises tribes a place in American life and sovereignty from states attempting to interfere with their affairs.
“In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history,” Gorsuch wrote. “All of that is in keeping with the Constitution’s original design.”
The Department of Justice declined to comment on the ruling. Attorneys for the tribes and adoptive families did not respond to requests for comment.
Follow @KelseyReichmann
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