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.
Justice Amy Coney Barrett wrote the majority opinion. She was joined by six other justices. Justices Clarence Thomas and Samuel A. Alito Jr., dissented.
Justice Barrett acknowledged the myriad thorny subjects raised in the challenge to the law, which 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.
“The issues are complicated,” she wrote. “But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.”
Under federal law, preference is given to Native families, a policy that the couple said violated equal protection principles and discriminated against Native children and non-Native families who wanted to adopt them because it hinges on placement based on race.
The tribes have said that they are political entities, not racial groups, and that doing away with that distinction, which underpins tribal rights, could imperil nearly every aspect of Indian law and policy, including measures that govern access to land, water and gambling.
The 1978 legislation, the Indian Child Welfare Act, 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, when it comes to a child’s welfare, 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.”
An evangelical couple from Texas, Jennifer and Chad Brackeen, along with other families, challenged the law after they took in a boy known in court records as A.L.M. The boy was less than a year old in 2016, when he entered the foster care system in the state. The boy, born to a Navajo mother and a Cherokee father, joined the couple after Navajo tribal placements fell through and eventually, both tribes agreed to let the couple adopt the child.
Their faith, the Brackeens have said, along with their comfortable living circumstances, called them to become foster parents.
In 2018, Judge Reed O’Connor of the United States District Court for the Northern District of Texas struck down the law as unconstitutional.
That same year, A.L.M.’s mother gave birth to another child, a girl. 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 her great-aunt, who lives on a reservation.
A state judge determined that the Brackeens would share custody with the great-aunt, with the girl spending time with her extended family each summer on the reservation.
Both the tribe and the couple appealed the decision as A.L.M.’s case wound its way through the U.S. Court of Appeals for the Fifth Circuit.
The court largely upheld the law, prompting both sides to seek Supreme Court review.
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, claimed the legislation interferes with the duty of states to protect abused and neglected children by improperly forcing state agencies to carry out a federal program.
Medical groups, including the American Academy of Pediatrics, have weighed in to support the legislation, arguing that it is an important tool to help 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.
Justice Brett M. Kavanaugh had appeared skeptical of the law. Offering an analogy, he said the court would not sustain a similar measure were it applied to white or Latino families. He said he did not think the court would ever allow “Congress to say that white parents should get a preference for white children in adoption or that Latino parents should get a preference for Latino children in adoption proceedings.”
The court’s three liberal members, along with Justice Neil M. Gorsuch, who has gained a reputation as a tribal rights advocate, had seemed supportive of the law.
Justice Ketanji Brown Jackson said that Congress had the authority to regulate adoption of Native children, as the tribes had argued.
“Congress said things like there’s no resource that is more vital to the continued existence and integrity of Indian tribes than their children,” she said. “They constantly cast regulations regarding children, Indian children, as a matter of tribal integrity, self-governance, existence.”
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