“Congress’s power to legislate with respect to Indians is well established and broad,” even though the regulation of child custody is primarily a state responsibility, Justice Amy Coney Barrett wrote for the majority.
Justices Clarence Thomas and Samuel A. Alito Jr. dissented, with Alito saying the majority’s decision violates the divisions of authority outlined in the Constitution.
“Decisions about child custody, foster care, and adoption are core state functions. The paramount concern in these cases has long been the ‘best interests’ of the children involved,” he wrote. “But in many cases, provisions of the Indian Child Welfare Act (ICWA) compel actions that conflict with this fundamental state policy, subordinating what family-court judges—and often biological parents—determine to be in the best interest of a child to what Congress believed is in the best interest of a tribe.”
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 court’s ruling Thursday did not resolve the broader question of whether the child-welfare law violates equal protection guarantees by placing non-Indian families on unequal footing with Indian families in custody disputes.
Tribal leaders called the decision a “major victory for Native tribes, children, and the future of our culture and heritage.”
“We hope this decision will lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long,” said a statement from leaders of the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation and Quinault Indian Nation.
The tribes and their supporters 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.
In his dissent Thursday, Thomas flatly rejected that the child-welfare law is constitutional.
“The Constitution confers enumerated powers on the Federal Government. Not one of them supports ICWA,” Thomas wrote.
He said the law “regulates child custody proceedings, brought in state courts, for those who need never have set foot on Indian lands . . . it fails equally under the Court’s precedents as it fails under the plain text and original meaning of the Constitution.”
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 case is Haaland v. Brackeen.
This is a developing story. It will be updated.
