The Supreme Court batted down a challenge Thursday from non-Indian families hoping to adopt American Indian children with a ruling supporting a federal law that says Indian children generally should be placed with their tribes.
The 7-2 ruling rejected claims that the Indian Child Welfare Act, which was drafted to protect tribal children from being taken outside their communities, stretches beyond Congress’ powers and violates the Constitution’s 10th Amendment by forcing states to place children with tribes even when judges don’t believe it’s in the best interest of the child.
“Congress’s power to legislate with respect to Indians is well established and broad. Consistent with that breadth, we have not doubted Congress’s ability to legislate across a wide range of areas, including criminal law, domestic violence, employment, property, tax, and trade,” Justice Amy Coney Barrett wrote in the chief opinion for the court.
The justices did not decide more tricky questions about whether the law violates the Constitution’s equal protection clause.
Justice Barrett said none of the plaintiffs in the cases before the court had the proper standing — meaning sufficient legal injury — to raise those questions.
In standard adoption cases, state law prevails and judges consider the children’s best interests in deciding where to place them.
The Indian Child Welfare Act says American Indian children should be connected to Indian families.
The high court had to decide whether that law applies even when the state feels the Indian placement is not in the child’s best interests.
The seven-justice majority said the act does apply. It rejected arguments that federal law was commandeering states in violation of the 10th Amendment, Justice Barrett said.
Justice Clarence Thomas dissented. He said the court went too far in granting the tribes special solicitude to intervene in state decisions involving people who don’t even live on tribal lands.
“The Constitution confers enumerated powers on the Federal Government. Not one of them supports ICWA. Nor does precedent,” Justice Thomas said.
He said the majority’s narrow ruling creates space for more challenges to the law.
Justice Samuel A. Alito Jr. also dissented. He said Congress’ decisions about what is best for the tribe trample children’s best interests.
“Whatever authority Congress possesses in the area of Indian affairs, it does not have the power to sacrifice the best interests of vulnerable children to promote the interests of tribes in maintaining membership,” Justice Alito wrote.
The adoptions before the court were fraught with tough questions.
The lead case involved Jennifer and Chad Brackeen, who adopted a boy, Zachary, over the objections of the Navajo Nation, which argued that the boy has a Navajo mother and Cherokee father and belongs with a tribe. The Brackeens succeeded with that adoption but clashed with the Navajo Nation when they later tried to adopt Zachary’s biological sister.
Another case involved Altagracia Hernandez, who chose adoptive parents for her newborn daughter with the support of the birth father. The father is a member of the Ysleta del Sur Pueblo tribe, which enrolled the girl as a member and fought the adoption.
Still another case involved a foster care placement, Child P, and Jason and Danielle Clifford, who wanted to adopt her. The White Earth Band of Ojibwe agreed that the girl was not a tribal member and did not fight the initial placement. The tribe changed its position when the adoption arose, enrolled the girl and fought to place her within the tribe.
A court placed the girl with her maternal grandmother, who had a criminal record.
President Biden said Wednesday that the court’s ruling is an antidote to centuries of mistreatment.
“In the not-so-distant past, Native children were stolen from the arms of the people who loved them. They were sent to boarding schools or to be raised by non-Indian families — all with the aim of erasing who they are as Native people and tribal citizens. These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations. The Indian Child Welfare Act was our Nation’s promise: never again,” the president said.
Vice President Kamala Harris said the federal law addresses “systemic injustice.”
Tribal leaders welcomed the ruling as a victory for their heritage and culture.
“We hope this decision will lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long,” Chuck Hoskin Jr., principal chief of the Cherokee Nation; Charles Martin, chairman of the Morongo Band of Mission Indians; Tehassi Hill, chairman of the Oneida Nation; and Guy Capoeman, president of the Quinault Indian Nation, said in a joint statement.
Attorney General Merrick Garland said the Indian Child Welfare Act was established nearly 45 years ago to protect American Indian children and families.
“The Justice Department vigorously defended the statute before the Supreme Court and will continue to support the Indian Child Welfare Act and do everything in our power to protect Tribal communities and affirm Tribal sovereignty,” Mr. Garland said.
In a separate legal dispute decided Thursday, the justices imposed limits on tribal sovereignty for bankruptcy cases.
A man received a $1,100 loan from a tribal-run payday lender and then filed for bankruptcy. The tribal business tried to collect anyway. The man went to court to stop the tribe, but the Lac du Flambeau Band of Lake Superior Chippewa Indians said it had sovereign immunity and couldn’t be sued.
The high court rejected that argument in an 8-1 decision written by Justice Ketanji Brown Jackson. Although tribal sovereignty usually prevails, she said, bankruptcy law is different because it “expressly abrogates” sovereign immunity.
Justice Neil M. Gorsuch dissented. He said the law isn’t as clear as Justice Jackson suggests and that without a clear statement by Congress, tribal sovereignty must prevail.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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