Preference can be given to tribes in adoption and foster placement of Native American children, U.S. Supreme Court rules

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The Supreme Court on Thursday upheld a federal law, intended to rectify past government abuses, that gives preference to the foster care and adoption of Native American children by their relatives and tribes.

At stake was the 1978 Indian Child Welfare Act, 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.

The law was challenged by seven individuals and three states, led by Texas. The plaintiffs contended 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. They argued that while Congress has vast power over issues relating to tribes in other areas, it went too far here.

The tribes and their supporters, in contrast, argued that the law is based on political distinctions, not racial ones, and that Congress had decided the law was necessary in part to ensure the tribes had a future. They said the law was meant to rectify a past in which, studies showed, about a third of Native children were removed from their parents for foster care or adoption. Upward of 85 percent of placements were in non-Native homes.

Traditionally, family courts base custody and decisions on the best interest of the child. But 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.

At oral argument, it was the third provision that seemed to cause the most concern among conservative justices.

A lawyer for the tribes said that option — placing a child with an Indian family from a different tribe — 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.

In a high-profile 2013 case involving a child who became known as “Baby Veronica,” the Supreme Court ruled 5-4 that the child welfare act did not require the girl, who had been adopted by a non-Native couple, to be placed in the custody of her birth father, a member of a tribe who had never had custody of the child. That case did not call for the justices to decide the constitutionality of the law.

The court also has been divided in other decisions involving Native American law. In 2020, it sided with tribal leaders in finding that a large portion of land in the eastern part of Oklahoma qualifies as an Indian reservation. Last term, the justices narrowed that decision to say that both the federal government and states have authority to prosecute non-Indians for crimes committed against Indians that occur within reservation boundaries.

The challenge to the Indian Child Welfare Act is Haaland v. Brackeen.

This is a developing story. It will be updated.

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