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Conservative Supreme Court justices question Native American adoption law

The challengers' lawsuit alleges a law that gives preference to Native Americans in the adoption process discriminates on the basis of race.

WASHINGTON — The Supreme Court appeared closely divided Wednesday as it weighed a challenge to a decades-old law aimed at protecting Native American children and buttressing tribal identity, with conservative justices indicating they could strike down at least part of it.

Tribes say a broad ruling in favor of the challengers would gut a landmark 1978 law called the Indian Child Welfare Act, which was enacted to help keep Native American children within tribes when possible — a response to a long history in which children were disproportionately removed from families by both states and the federal government.

Chad and Jennifer Brackeen with their two biological children and two Native American youths at the center of a court battle, at home near Fort Worth, Texas, on May 31, 2019.
Chad and Jennifer Brackeen with their two biological children and two Native American youths at the center of a court battle at home near Fort Worth, Texas, in May 2019.Allison V. Smith / The New York Times via Redux file

Among the provisions being challenged is one that gives preference to Native Americans seeking to foster or adopt Native American children, which those challenging the law say discriminates on the basis of race. The court's conservative 6-3 majority includes justices with long histories of opposing laws aimed at correcting historical discrimination by creating new preferences.

The tribes strenuously deny the law discriminates on the basis of race, saying it focuses on tribal identity, which is akin to nationality and is not a race-based distinction.

Several conservative justices indicated sympathy toward one aspect of the racial classification argument while also raising questions about whether Congress had sweeping powers to legislate on the issue in the first place. The court's three liberal justices appeared supportive of the law, as did conservative Justice Neil Gorsuch, who has voted in favor of tribes in other cases.

The challengers are led by Chad and Jennifer Brackeen — a white evangelical Christian couple who sought to adopt a Native American boy — as well as the states of Texas, Indiana and Louisiana. The couple adopted the child after a potential placement with a Navajo family fell through. They are also seeking to adopt the child’s half-sister, who lives with them.

The challengers mount a host of arguments, the most notable of which is that the preference language violates the constitutional provision that all laws apply equally to everyone. They also argue that Congress does not have the power to legislate on state adoption proceedings, notwithstanding the broad authority it has to enact laws concerning Native Americans.

It was unclear based on the questions asked during the more than three hours of oral arguments how broad a potential ruling against the law could be. The court could stop short of a sweeping ruling by taking aim at a particular provision several justices focused on, which gives preferences to tribal members who do not belong to the same tribe as the child.

“This is just treating Indian tribes as fungible,” said conservative Justice Amy Coney Barrett, indicating that the law does not recognize the cultural differences between tribes.

Conservative Justice Samuel Alito noted that before European settlers arrived in North America, “tribes were at war with each other” with regularity, questioning why one tribe would have any cultural ties with another.

It is common for citizens of one tribe to live on the reservation of another, and many tribal nations are aligned through shared culture and history, as well as geography. “The way this comes up most often, actually, is individual Indians living on the reservation of another," said Ian Gershengorn, the lawyer representing tribes. "And so they are building exactly that community.

“This is not some random tribe plucked from the ether that all of a sudden gets a preference," he said.

A ruling striking down that part of the law could leave in place a separate provision that allows members of the same tribe to get preference over nontribal members in the adoption proceedings.

On the question of how much leeway Congress has to give preferential treatment to Native Americans, both Alito and Chief Justice John Roberts questioned whether the federal government could give priority to Native Americans in receiving Covid vaccinations.

Roberts, homing in on how the law works in practice in state court custody proceedings, also questioned whether a state agency determination of what is in the best interests of the child “would be subordinated” to a non-family member who is Native American and wants to take custody of the child.

The law is being defended by the Biden administration and five tribes: the Navajo, Cherokee, Oneida and Quinault Indian nations and the Morongo Band of Mission Indians.

Tribes have also warned that striking down provisions of the law on racial discrimination grounds would threaten centuries of law that treat Native American tribes as distinct entities.

Liberal justices pointed to Congress’ reasons for passing the law, which was aimed at protecting the integrity of tribal communities and strengthening those communities, indicating that was in line with Congress’ power to write laws about Native American affairs.

There is a long history to support the idea that the definition of "Indian" in U.S. law is "political in nature, not racial," liberal Justice Elena Kagan said. Congress found that the law was required for the "continued thriving of Indian communities," she added.

Gorsuch questioned whether the challengers even had legal standing to bring the case, saying their arguments were suffused with “policy arguments” that “may be better addressed across the street,” in reference to the Capitol, which sits opposite the Supreme Court in Washington.

Both sides appealed to the Supreme Court after the New Orleans-based 5th U.S. Circuit Court of Appeals last year issued a splintered decision in which judges were divided over the key issues. A district judge had previously held that the law was unconstitutional.

The Supreme Court has been closely divided in two major recent cases on Native American issues. In 2020, the court expanded tribal authority in Oklahoma in a 5-4 ruling authored by Gorsuch. But in a follow-up case this year seeking to limit the impact of the earlier ruling, the court reversed course, ruling 5-4 to widen state power over tribes in certain instances.

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 tribes in the second case, while Gorsuch joined the three liberal justices in dissent.