The U.S. Supreme Court on Wednesday is set to consider a dispute over the legality of decades-old federal requirements that give preferences to Native Americans and tribal members in the adoption or foster care placements of Native American children.
The justices are due to hear oral arguments to weigh a challenge by a group of non-Native American adoptive families and the Republican-governed state of Texas to the Indian Child Welfare Act of 1978 after lower courts declared parts of the law unconstitutional. Democratic President Joe Biden’s administration and several Native American tribes are defending the law.
The challengers contend that some of the preferences racially discriminate against non-Native Americans in violation of the U.S. Constitution’s Fifth Amendment promise of equal protection under the law.
The case is one of three major race-related disputes the conservative-majority court has confronted since the beginning of its current nine-month term last month. The others involve the rights of Black voters in Alabama and race-conscious student admissions policies at Harvard University and the University of North Carolina.
Tribal groups have said the adoption challenge is an attack on their sovereignty and warn that a ruling that broadly undermines the Indian Child Welfare Act could affect issues well beyond child welfare, including land rights and economic development.
The Indian Child Welfare Act sought to reinforce tribal connections by setting federal standards for removal and placement in foster care or adoption, including that “preference” be given to members of a child’s extended family, other tribe members or “other Indian families.”
The U.S. Congress passed that law to address a state-level crisis of unwarranted removals of Native American children from their families and placement in non-Native American foster or adoptive homes. At the time, between 25% and 35% of all Native American children were removed in states with large Native American populations, according to court papers.
The lawsuit, first filed in 2017, was brought by Texas and three non-Native American families who sought to adopt or foster Native American children. They include Texas couple Jennifer and Chad Brackeen, who in 2018 adopted a child whose mother is a member of the Navajo Nation. They are currently in a battle with the tribe as they seek to adopt the boy’s half-sister.
In court papers, Texas said, the Indian Child Welfare Act “establishes an overt and unapologetic race-discrimination regime.”
Texas added: “Though passed as a putative effort to ensure that Western racial mores are not used to break up an Indian household, those provisions often prevent the removal of a child from a dangerous environment, excusing physical abuse that would suffice for removal of a non-Indian child.”
The plaintiffs also said that the law unconstitutionally directs the actions of state agencies in adoption matters.
A diverse coalition of 24 states – including Alaska, Arizona and California – and the District of Columbia are backing the Biden administration in the case, saying in a legal filing that the law “has largely worked as Congress intended.”
The law’s defenders have said that its procedures distinguishing between “Indians and non-Indians” are valid under both the Constitution and the Supreme Court’s own precedents.
The Justice Department said in a filing that the “Constitution itself singles Indians out as a proper subject for separate legislation, and this court has held in an unbroken line of precedents that such classifications are political rather than racial.”
The tribes told the Supreme Court that the law is still necessary because Native American children continue to be disproportionately represented in state foster care.
A federal judge ruled in favor of the challengers in 2018. Last year, 16 judges sitting on the New Orleans-based 5th U.S. Circuit Court of Appeals narrowed that ruling, but affirmed the invalidation of certain parts of the law.
The Supreme Court is due to rule by the end of June.
