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Supreme Court upholds federal law on Native American children

Justices say Congress has power to prioritize Native American families for foster homes or adoptions

The Supreme Court building at sunset.
The Supreme Court building at sunset. (Bill Clark/CQ Roll Call file photo)

The Supreme Court on Thursday upheld the Indian Child Welfare Act, a 1978 law that prioritizes Native American children be fostered or adopted by Native American families.

In a 7-2 decision , the court found Congress has broad power over the U.S. relationship with Native American tribes, and the adoption law falls within that scope.

“Our cases leave little doubt that Congress’s power in this field is muscular, superseding both tribal and state authority,” Justice Amy Coney Barrett wrote for the majority.

Hawaii Democratic Sen. Brian Schatz, who chairs the Senate Committee on Indian Affairs, said the ruling validated a landmark law and respected tribal sovereignty.

“The Supreme Court just validated what Indian Country and Tribal advocates have been saying for generations: the Indian Child Welfare Act is the gold standard of child welfare policy,” Schatz said in a news release.

President Joe Biden praised Thursday’s ruling in a statement that pointed to the nation’s “painful history” with boarding schools and policies that placed Native American children with non-tribal families.

“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,” Biden said.

The opinion dealt with three cases from families challenging adoption decisions, as well as a challenge from the state of Texas. The challengers argued the law, which mandated that state family law proceedings follow federal rules for Native American children, violated the Constitution because they commandeered state court systems and violated the Constitution’s guarantee of equal protection by treating Native American children differently.

The Biden administration defended the law, arguing that Congress had the authority to specify that the best interest of a Native American child was to be placed with a family member or member of the same tribe. The administration also argued that it was consistent with the Constitution for Congress to use state courts to enact its tribal policy.

Congress passed the law after states spent years placing children in foster or adoptive families outside of their tribes — policies that tribes argued was wiping out their cultural heritage.

Although the challengers argued that no specific treaty or provision of the Constitution authorized the adoption law, it still fell within congressional “plenary powers” over Native American tribal relations, Barrett wrote.

The challengers to the law offered broad criticisms that the Supreme Court’s precedents around tribal law did not tie back to specific constitutional provisions or treaties, but Barrett wrote their “strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law—that would at least give us something to work with.”

“Instead, they frame their arguments as if the slate were clean. More than two centuries in, it is anything but,” Barrett wrote.

Separately, the opinion held that none of the parties in the cases had the ability to challenge the preferences themselves as violations of the 14th Amendment to the Constitution.

In a dissent, Justice Clarence Thomas wrote the federal government’s assertion of power over state adoption proceedings “should raise alarm bells.” Thomas argued that the federal government’s general “trust relationship” with Native American tribes has no basis in the Constitution and that family law proceedings fall under state law.

“When Congress has so clearly intruded upon a longstanding domain of exclusive state powers, we must ask not whether a constitutional provision prohibits that intrusion, but whether a constitutional provision authorizes it,” Thomas wrote.

Thomas, as well as Justice Samuel J. Alito Jr., who filed a separate dissent, would have invalidated the law.