Supreme Court upholds Native American adoption law

The Supreme Court on Thursday upheld a 1978 law aimed at keeping Native American adoptees with their tribes and traditions, handing a victory to tribes who argued that a blow to the law would overturn the basic principles that allowed them to govern themselves.

Justice Amy Coney Barrett wrote the majority opinion. She was joined by six other judges. Judges Clarence Thomas and Samuel A. Alito Jr. didn’t agree.

Judge Barrett acknowledged the myriad thorny issues raised in the battle against the law, which pitted a Texas white foster couple against five tribes and the Department of the Interior as they battled for the adoption of a Native American child.

“The issues are complicated,” she wrote. “But the bottom line is that we reject all challenges from petitioners of the statute, some on the merits and others for lack of status.”

Federal law favors Indigenous families, a policy the couple says violates principles of equal protection and discriminates against Indigenous children and non-Indigenous families seeking to adopt them because it depends on placement based on of race.

The tribes have said they are political entities, not racial groups, and that abolishing that distinction, which underpins tribal rights, could jeopardize nearly every aspect of Indian law and policy, including measures that restrict access to regulate land, water and gambling.

The 1978 Indian Child Welfare Act was designed to address the legacy of abuse suffered by Native American children, hundreds of thousands of whom had been separated from their tribe to be raised by families disconnected from their culture.

When it comes to a child’s welfare, a judge is usually charged with determining the best interests of the child. Under the law, however, Native American children are subject to different rules, in part to protect their tribal ties.

The law establishes adoption priorities before a child can be placed with a non-Indigenous family. Children must first be in the care of a member of their extended family. If that’s not possible, priority goes to a member of their tribe; if that fails, children have to go to ‘other Indian families’.

An evangelical couple from Texas, Jennifer and Chad Brackeen, along with other families, challenged the law after taking in a boy known as ALM in court records. The boy was less than a year old in 2016 when he entered foster care in the state. Born to a Navajo mother and Cherokee father, the boy joined the couple after the Navajo Tribe placements fell through and eventually both tribes agreed to let the couple adopt the child.

Their faith, the Brackeens say, along with their comfortable living conditions, prompted them to become foster parents.

In 2018, Judge Reed O’Connor of the United States District Court for the Northern District of Texas declared the law unconstitutional.

That same year, ALM’s mother gave birth to another child, a girl. She also ended up in foster care. The Brackeens filed for custody, hoping she could 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 the great-aunt, with the girl spending time each summer with her extended family on the reservation.

Both the tribe and the couple appealed the decision as ALM’s case worked its way through the U.S. Court of Appeals for the Fifth Circuit.

The court largely obeyed the lawprompting both sides to seek Supreme Court review.

The Supreme Court has heard other challenges to India’s child welfare law, last in 2013but the composition of the court has changed considerably since then.

Other states, including Ohio and Oklahoma, have supported the Brackeens, arguing that the law infringes on states’ ability to handle child welfare cases. The Goldwater Institute, a conservative policy center in Arizona, claimed the legislation violates states’ duty to protect abused and neglected children by improperly forcing government agencies to implement a federal program.

Medical groups, including the American Academy of Pediatrics, have weighed to support the legislation, arguing it is an important tool to help mend “the intergenerational pain of lost connections and the trauma of historic loss”.

In comprehensive arguments in November, the justices focused on whether Congress had the power to enact the legislation at all and whether it violated the principles of equal protection.

In particular, they considered the provision that allowed Indigenous children to be placed with “other Indian families” – and whether that was a determination based on race.

Judge Brett M. Kavanaugh had appeared skeptical of the law. He offered an analogy, saying the court would not support a similar measure if applied to white or Latino families. He said he didn’t think the court would ever allow “Congress to say that white parents should favor white children in adoptions or that Latino parents should favor Latino children in adoption proceedings.”

The court’s three liberal members, along with Judge Neil M. Gorsuch, who has developed a reputation as a tribal rights advocate, appeared to support the law.

Judge Ketanji Brown Jackson said Congress had the authority to regulate the adoption of Native children, as the tribes had argued.

“Congress said things like there is no resource more important to the survival and integrity of Native American tribes than their children,” she said. “They are constantly throwing up rules regarding children, Indian children, as a matter of tribal integrity, self-government, existence.”