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Law on placement of Native American children divides Supreme Court

Justices seemed inclined to reconsider parts of law that prioritizes foster or adoptive parents based on tribal status

Demonstrators stand outside of the Supreme Court, as the court heard arguments over the Indian Child Welfare Act on Wednesday. (Mariam Zuhaib/AP)

The Supreme Court seemed split Wednesday as it considered the constitutionality of a federal law, intended to rectify past government abuses, that prioritizes the foster care and adoption of Native American children by other relatives and tribes.

At stake was the 1978 Indian Child Welfare Act (ICWA), which was passed to remedy what Congress said was a disgraceful history in which hundreds of thousands of Native American children were removed from their homes by adoption agencies and placed with White families or in group settings.

Tribal representatives told the justices that a broad decision could affect Native Americans in other areas. But it did not appear from more than three hours of oral arguments that there was a majority of justices content to let the law stand as is.

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The law is being challenged by seven individuals and three states, led by Texas. The plaintiffs contend the law requires state officials to put aside the traditional standard of doing what is best for the child, and relies on racial discrimination in ways the Constitution does not allow.

Five of the court’s six conservatives asked skeptical questions of lawyers representing the Biden administration and Indian tribes in defense of the law, and Justice Brett M. Kavanaugh posed the question that he said was at the heart of a tough case.

“On the one hand, the great respect for tribal self-government for the success of Indian tribes with Indian people’s — with recognition of the history of oppression and discrimination against tribes and people,” Kavanaugh said. “On the other hand, the fundamental principle we don’t treat people differently on account of their race or ethnicity or ancestry, equal justice under law.”

But conservative Justice Neil M. Gorsuch, who has been a strong supporter of Indian rights in his time on the Supreme Court, joined the court’s three liberals in vigorously defending Congress’s prerogative to pass the law, as well as the idea that judicial humility required leaving it in place.

“You can question the policy, you can not question the policy, but the policy is for Congress to make. And Congress understood these children’s placement decisions as integral to the continued thriving of Indian communities,” Justice Elena Kagan said, adding: “That’s not something that we can second-guess, is it?”

“It is under the Constitution, your honor,” responded Washington attorney Matthew D. McGill, who represented a White Texas couple who have adopted an Indian child and want to adopt that child’s half sister. “The Congress does not have the power to treat these children as property of the tribes because of their ancestry.”

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The case comes before a court, led by Chief Justice John G. Roberts Jr., that is increasingly skeptical of government’s reliance on racial classifications, having signaled last week that it was open to ending affirmative action in university admissions.

On Wednesday, Kavanaugh asked Deputy Solicitor General Edwin S. Kneedler whether Congress’s vast authority over Indian affairs gave it the power to “mandate that states give a preference in college admissions to American Indians?”

Kneedler said such a position would be more difficult to defend than the ICWA, because college admissions are less related to preservation of tribes and “bumps up against” the interests of others.

But he agreed with Kavanaugh’s suggestion that Congress “couldn’t give a preference for White families for White children, for Black families for Black children, for Latino families for Latino children, for Asian families for Asian children.”

Those decisions would be based on race, Kneedler said, while the preferences in the ICWA are political — based on membership in tribes the federal government has recognized.

When custody and adoption proceedings are in state rather than tribal courts, the ICWA sets up a hierarchy of placement for Indian children, preferring first the child’s extended family, then members of the child’s tribe, then another Indian family even if from a different tribe and then a non-Indian home.

Two members of the court, Roberts and Justice Amy Coney Barrett, are adoptive parents. Roberts was especially concerned that the law eschewed traditional custody decisions that make the child the priority.

“Do you think that ICWA incorporates the familiar best-interest-of-the-child inquiry that are applied in family courts throughout the country?” Roberts asked. McGill said that it didn’t.

But Ian H. Gershengorn, representing Native American tribes, said Congress had provided other flexibility in a way that child-welfare professionals said in amicus briefs made it the “gold standard” for placement of children.

Despite the preferences in the law, courts can take into account “the views of the parents, the views of the child, if the child is old enough to express them,” Gershengorn said. “You can take into account sibling attachment. You can take into account bonding with foster parents, as long as it was not done illegally through ICWA. The thing you cannot take into account is socioeconomic status.”

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Roberts, Barrett and Justice Samuel A. Alito Jr. expressed concern about the third priority of the law, placing the child with another Indian family, even if not of the same tribe. “Let’s assume I agree with you that these are political classifications — this is just treating Indian tribes as fungible,” Barrett said.

But Gershengorn said that priority almost never came into play, and when it did it was with members of a tribe that shared land with the child’s tribe. There was no evidence of what he called a “Maine to Arizona” adoption. He also said the court could sever that third requirement and leave the law in place.

The case arrived at the Supreme Court from the U.S. Court of Appeals for the 5th Circuit, where part of the law was upheld and part was held unconstitutional. The complicated ruling ran 325 pages, with opinions from six judges.

Gorsuch and the liberal justices seemed convinced Congress had authority to implement the law, which Gershengorn said was studied for four years and meant to rectify a past in which studies showed that 25 to 35 percent of Native children were being removed from their parents for foster care or adoption. Upward of 85 percent of placements were in non-Native homes.

After getting McGill to agree to the wide authority Congress has to regulate commerce, health care and other issues regarding Native Americans, Gorsuch concluded: “I guess I’m struggling to understand why this falls on the other side of the line when Congress makes the judgment that this is essential to … self-preservation of Indian tribes.”

Justice Sonia Sotomayor enumerated many ways Congress has regulated Indian affairs, and pushed back on the notion that state courts implementing the act are restricted from making the best choice for the child.

“All of these parents, to even be in the running, have to be competent parents, correct?” she asked Kneedler. So “the issue is one of policy. Where will you place the child among these competing competent custodians, correct?”

Justice Ketanji Brown Jackson said that was a choice for Congress. It “really boils down to a fundamental question that comes up in the law a lot, which is who decides?” Jackson said. “Who decides whether regulation in this area counts for Indian self-government?”

But McGill said the court had a role, too.

The children at issue “are human beings,” he said. “They are citizens of the United States and the states in which they reside … and they have liberty interests that the tribe cannot override simply by unilaterally enrolling them.”

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