The Supreme Court on Thursday upheld a 1978 law aimed at keeping adopted Native Americans with their tribes and traditions, handing a victory to tribes who had argued that a swipe at the law would overturn the basic tenets that allowed them to govern themselves from alone.
The case pitted a white foster couple from Texas five tribes and the Department of the Interior as they campaigned for the adoption of a Native American child.
Under federal law, native families are given preference, a policy the couple said violated the principles of equal protection and discriminated against native children and non-native families who wanted to adopt them because it depends on placement based on race.
Tribes have argued that they are political entities, not racial groups, and that eliminating this distinction, which underpins tribal rights, could undermine nearly every aspect of Indian law and politics, including measures governing access to land, water and gambling.
The 1978 legislation, the Indian Child Welfare Act, was intended to address the legacy of abuse of Native American children, hundreds of thousands of whom had been separated from their tribes to be raised by families with no connection to their culture .
Typically, when it comes to the welfare of a minor, a judge is tasked with determining the best interests of the minor. Under the law, however, Native American children are subject to different rules, in part to safeguard their tribal ties.
The law prioritizes adoption before a child can be placed with a non-native family. Children should first be placed in the care of a member of their extended family. If this is not possible, priority would pass to a member of their tribe; if not, the children would have to go to « other Indian families ».
An evangelical couple from Texas, Jennifer and Chad Bracken, along with other families, challenged the law after taking in a boy known in court records as ALM. The boy was less than a year old in 2016 when he entered the state foster care system. The boy, born to a Navajo mother and Cherokee father, joined the couple after Navajo tribal placements failed and both tribes eventually agreed to let the couple adopt the child.
Their faith, the Brackeens said, along with their comfortable living conditions, called them to become foster parents.
In 2018, Judge Reed O’Connor of the United States District Court for the Northern District of Texas struck down the law as unconstitutional.
That same year, ALM’s mother gave birth to another child, a girl. She too went into foster care. The Brackeens sought custody of her, hoping she might join her brother. The Navajo tried to place the child with her great aunt, who lives on a reservation.
A state judge ruled that the Brackeens would share custody with their great-aunt, with the girl spending time with her extended family each summer on the reservation.
Both the tribe and the couple appealed the decision as ALM’s case made its way through the United States Court of Appeals for the Fifth Circuit.
The court largely upheld the lawprompting both sides to seek a Supreme Court review.
The Supreme Court has heard other appeals to the Indian Child Welfare Act, most recently in 2013but since then the composition of the court has changed considerably.
Other states including Ohio and Oklahoma, the Brackeens argued, arguing that the law interferes with states’ ability to handle child care cases. The Goldwater Institute, a conservative political center in Arizona, he said the legislation interferes with states’ duty to protect abused and neglected children improperly forcing state agencies to carry out a federal program.
Medical groups, including the American Academy of Pediatrics, they weighed to support the legislation, arguing that it is an important tool to help repair « the intergenerational pain of lost connections and the trauma of historic loss. »
In wide-ranging arguments in November, justices focused on whether Congress had the power to enact the legislation in the first place and whether it violated the principles of equal protection.
Specifically, they considered the provision that allowed native children to be placed with « other Indian families » and whether it was a race-based determination.
Judge Brett M. Kavanaugh had appeared skeptical of the law. Offering an analogy, he said the court would not uphold a similar measure if it applied to white or Latino families. He said he didn’t think the court would ever allow « Congress to say that white parents should have a preference for white children in adoption or that Latino parents should have a preference for Latino children in adoption proceedings. » .
The three liberal members of the court, along with Justice Neil M. Gorsuch, who has earned a reputation as an advocate of tribal rights, appeared supportive of the law.
Justice Ketanji Brown Jackson said Congress had the authority to regulate the adoption of Native children, as the tribes had advocated.
« Congress has said things like there is no resource more vital to the continued existence and integrity of Indian tribes than their children, » he said. « They are constantly throwing out regulations regarding children, Indian children, as a matter of tribal integrity, self-governance, existence. »