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Supreme Court Upholds Native American Adoption Law

At issue in the case was whether a law aimed at keeping Native American adoptees within tribes is constitutional.


By Abbie VanSickle

Nita Battise, a member of the Alabama-Coushatta tribe, celebrated the ruling on the steps of the Supreme Court on Thursday. Credit: Kenny Holston / The New York Times


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 that had argued that a blow to the law would upend the basic principles that have allowed them to govern themselves for years.


Justice Amy Coney Barrett, writing for the majority, affirmed the power of Congress to make laws about Native American tribes and child welfare. But the ruling did not resolve the question of whether the law, the Indian Child Welfare Act, discriminated against non-Native families based on race.


The vote was 7 to 2, with Justices Clarence Thomas and Samuel A. Alito Jr. dissenting.


The case pitted a white foster couple from Texas against five tribes and the Interior Department as they battled over the adoption of a Native American child.


Under the act, preference is given to Native families, a policy that the couple said violated equal protection principles because it hinges on placement based on race.


The tribes have said that they are political entities, not racial groups. Doing away with that distinction, which underpins tribal rights, they argued, could imperil nearly every aspect of Indian law and policy, including measures that govern access to land, water and gambling.


The majority dismissed the equal protection argument, saying that no party in the case had legal standing. Instead, the justices focused on Congress’s longstanding authority to make laws about tribes and rejected claims by the challengers in the case, Jennifer and Chad Brackeen, a Christian couple from Texas, that states, not the federal government, should be addressing issues of family law.


“Our cases leave little doubt that Congress’s power in this field is muscular, superseding both tribal and state authority,” Justice Barrett wrote, adding that its authority touched on subjects as varied as criminal defense, domestic violence, property law, employment and trade. She added, “The Constitution does not erect a firewall around family law.”


In their dissenting opinions, Justices Thomas and Alito asserted that Congress had overstepped.

The majority, Justice Alito wrote, had lost sight of those most at risk: children.


The majority “decides one question after another in a way that disserves the rights and interests of these children and their parents, as well as our Constitution’s division of federal and state authority,” he added.


Justice Thomas wrote that the legislation exceeded the federal government’s power, adding that some of the Native American children involved in the adoptions “may never have even set foot on Indian lands.”


The case began when the Brackeens, along with other families, challenged the law after they took in a boy in 2016 known in court records as A.L.M. The boy, born to a Navajo mother and a Cherokee father, joined the couple after Navajo tribal placements fell through.


Eventually, both tribes agreed to let the couple adopt the child, but in 2018, A.L.M.’s birth mother had another child, a girl known in court records as Y.R.J. She, too, entered foster care. The Brackeens filed for custody, hoping she could join her brother. The Navajo sought to have the child placed with a distant relative, who lives on a reservation.


A state judge determined that the Brackeens would share custody of the girl with the relative. Both the tribe and the couple appealed the decision as A.L.M.’s case made its way to the Supreme Court.


In sidestepping the equal protection argument, the justices appear to have left the door open to challenges on whether the law is racially discriminatory. Justice Brett M. Kavanaugh, in a concurring opinion, wrote that question deserved consideration.


“In my view, the equal protection issue is serious,” he wrote. The Indian Child Welfare Act, he added, can deny a child or an adoptive family a placement “because of the child’s race — even if the placement is otherwise determined to be in the child’s best interests.”


Justice Kavanaugh added, “Courts, including ultimately this court, will be able to address the equal protection issue when it is properly raised.”


In another concurring opinion, Justice Neil M. Gorsuch, who has emerged as a fierce advocate of tribal rights, emphasized the fraught history of the legislation, writing that it was meant to remedy the forcible removal of Indian children from their families.


“In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike,” he wrote.


Tribal leaders expressed relief about the ruling.


The decision is “a broad affirmation of the rule of law, and of the basic constitutional principles surrounding relationships between Congress and tribal nations,” leaders of the Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Indian Nation said in a joint statement.


President Biden nodded to the country’s past in casting the ruling as a victory.


“In the not-so-distant past, Native children were stolen from the arms of the people who loved them,” he said in a statement. “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.”


A spokesman and a family friend for the Brackeens said they were worried about the future of Y.R.J., now 5 years old.


She “has been part of their family for over four years,” said the spokesman, Thomas Graham. “They wish to say they love Y.R.J. more than words can describe and will continue to fight to adopt her and keep her united with her brother, whom the Brackeens also adopted.”


The trial concerning Y.R.J. was paused pending the Supreme Court’s ruling.


The 1978 legislation was meant to address the legacy of abuses 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 in child welfare cases, a judge is charged with determining the best interest of the child. Under the act, however, Native American children are subject to different rules, in part to safeguard their tribal ties.


The law lays out priorities for adoption before a child can be placed with a non-Native family. Children should first be in the care of a member of their extended family. If that is not possible, then priority would move to a member of their tribe; failing that, children should go to “other Indian families.”


The Supreme Court has heard other challenges to the Indian Child Welfare Act, most recently in 2013, but the court’s composition has shifted considerably since then.


Other states, including Ohio and Oklahoma, have backed the Brackeens, arguing that the law intrudes on states’ ability to handle child welfare cases. The Goldwater Institute, a conservative policy center in Arizona that has long mounted challenges to the act, said it improperly forced state agencies to carry out a federal program.


“We’re talking about a law that strips children of legal protections based on their racial ancestry,” Timothy Sandefur, the vice president for legal affairs at the Goldwater Institute, said after the court issued its decision. “This law, for example, makes it harder for state officials to protect abused and neglected Indian children.”


Medical groups, including the American Academy of Pediatrics, have weighed in to support the legislation, arguing that it helps redress “the intergenerational pain of lost connections and the trauma of historical loss.”


In wide-ranging arguments in November, the justices focused on whether Congress had the power to enact the legislation in the first place and whether it violated equal protection principles.


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


© 2023 The New York Times Company


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