The Supreme Court on Thursday upheld a decades-old federal law that gives preference to Native American families in foster care and adoption proceedings involving Native children.
In a 7-2 ruling, the court turned down a series of claims that sought to invalidate parts of the 1978 Indian Child Welfare Act, which was enacted to address concerns Native children were being separated from their families and placed in non-Native homes.
The court, in a ruling authored by Justice Amy Coney Barrett, dismissed claims from three white families, the state of Texas and other Republican-led states that argued the law was a form of racial discrimination and that it put the interests of tribes ahead of the children.
The ruling handed a win to Native American tribal leaders who have supported the law as a means of preserving their families, traditions and cultures.
“The issues are complicated,” Justice Barrett wrote in the ruling. “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.”
Two conservative justices, Clarence Thomas and Samuel Alito, dissented from the decision, with Alito writing that the court’s decision “disserves the rights and interests of these children.”
The law was passed to address the alarming rate at which Native American and Alaska Native kids were being taken from their homes by public and private agencies and then placed with non-Native families.
It set federal standards for removing children from their families and putting them up for adoption or in foster care, including requiring that “preference” be given to the child’s extended family, other tribe members of “other Indian families.”
At the time of the law’s passage, between 25% and 35% of all Native American children were removed in states with large tribal populations, court documents said. Most of them were placed with white families or in boarding schools.
The three families at the center of the Supreme Court case, which was first filed in 2017, had all sought to adopt or foster Native American children.
The lead plaintiffs — Chad and Jennifer Brackeen of Fort Worth, Texas — ended up adopting a Native American boy in 2018 after a lengthy legal fight with the Navajo Nation.
The couple are now trying to adopt the boy’s half-sister, now 4, who has lived with them since she was an infant. The Navajo Nation, however, has opposed the adoption.
Among other claims, the plaintiffs had argued the federal law racially discriminated against non-Native Americans — a violation of the Constitution’s Fifth Amendment guarantee of equal protection under the law.
Barrett, in her majority opinion, said the court couldn’t decide the merits of the race claims set forth by the plaintiffs.
She wrote that suing the federal government wouldn’t remedy the alleged racial discrimination “because state courts apply the placement preferences, and state agencies carry out the court-ordered placements.”
President Biden, whose administration defended the law, praised the decision, saying it “keeps in place a vital protection for tribal sovereignty and Native children.”
“The touchstone law respects tribal sovereignty and protects Native children by helping Native families stay together and, whenever possible, keeping children with their extended families or community who already know them, love them and can help them understand who they are as Native people and citizens of their Tribal Nations,” he said in a statement.
“Our Nation’s painful history looms large over today’s decision,” Biden added. “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.”
With Post wires