WASHINGTON – The Supreme Court heard arguments on Wednesday on a case based in part on a lawsuit filed by a Minnesota couple that would determine tribal rights in the adoption of Native American children.
The Supreme Court’s decision in the case could also threaten other laws protecting tribes, including those relating to land, water rights and – more broadly – tribal sovereignty. That’s why the case has galvanized Indian country.
After several hours of oral arguments Wednesday, several justices, including both Chief Justice John Roberts and Justice Amy Coney Barrett – who both have adopted children – were skeptical of the law at the center of the case that mandates states give preference to the placement of Indian children who need foster care or are up for adoption with members of a tribe or a tribal entity.
Kavanaugh said the justices had to weigh “on the one hand, the great respect for tribal self-government for the success of Indian tribes with Indian people” and the ” recognition of the history of oppression and discrimination against tribes and people” against “the fundamental principle we don’t treat people differently on account of their race or ethnicity or ancestry, equal justice under law.”
Meanwhile, Justice Sam Alito asked if Congress could make that preference even stronger, mandating that an “Indian child may not be adopted by a non-Indian couple under any circumstances.”
Alito was told by Edwin Kneedler, a lawyer defending the Interior Department, which is defendant in the case, that a move by Congress to bar the adoption of Indian children by non-Indians “would be difficult to defend.”
Considering Wednesday’s arguments and briefs filed in support of one side or the other in the case, the high court will determine the constitutionality of a 43-year-old federal statute known as the Indian Child Welfare Act (ICWA) that aims to keep children in Native American families or with their tribes whenever possible. The law was approved by Congress in an effort to promote tribal stability and preserve tribal culture.
It was the result of congressional hearings that found in the mid-20th century alone, nearly one-third of Native children were forcibly removed from their families and placed in foster care, with adoptive white families or in boarding schools by the federal government.
Texas, and other states, argue that the federal government has overreached. Those seeking to invalidate the Indian Child Welfare Act based their appeals to the Supreme Court on three cases involving the adoption of Native American children.
One was based on a lawsuit filed in Minnesota state court by a Twin Cities couple, Jason and Danielle Clifford, who in 2016 took in a 6-year-old girl who was a member of the White Earth Band of Ojibwe. The child’s mother and father had lost their parental rights due to drug use.
The Cliffords fostered the child for about 18 months and sought to adopt her. But the child’s maternal grandmother, who had battled to win custody of her granddaughter, eventually prevailed in the fight. A White Earth member who lives in Minneapolis, the grandmother was able to win back the child thanks largely to her tribe’s help and the Indian Child Welfare Act.
Those who challenge the ICWA say the law is unconstitutional because they say law is based on race, rather than on the unique status Indian tribes and their members have with the federal government. They also say the federal government violated the 10th Amendment by “commandeering states” to among other things, require state agencies to bear the cost and burden of providing expert testimony to justify placing Native American children in foster care.
A ruling on that issue would not affect Minnesota, said Ben Kappelman, an attorney with the Minneapolis-based Dorsey and Whitney law firm, because the state has its own law that is even more broad than the Indian Child Welfare Act. Among other things, the state law gives tribes the right to participate in foster care placements and the White Earth Band of Ojibwe did so in the Clifford case.
However, Kappelman, who represents a Minnesota tribe on adoption cases, said if the Supreme Court decides the ICWA is based on race, the high court’s ruling would threaten Minnesota’s law.
“And then it’s a short jump to the next arguments that would challenge all other (Native American) programs and the bedrock of how our country handles Native American tribes,” Kappelman said.
Kappelman also said that the Supreme Court justices who seem most skeptical of ICWA focused on two points, whether there are limits on Congress’s power to legislate issues related to Native Americans, and whether it’s a problem for the law to includes a placement preference for Native American families that are not members of the Native American child’s tribe.
Nearly every tribe in the nation and in Minnesota, including the White Earth Band of Ojibwe, and nearly every tribal organization had signed on to “friend of the court” briefs urging the Supreme Court to recognize their sovereignty and their rights when it concerned Indian children.
“The challenges to ICWA in this litigation seek to diminish ICWA’s protections and undermine the unique trust responsibilities the United States owes to Indian children and Indian Tribes,” said a brief filed by 180 Indian tribes and 35 tribal organizations.
It also said “since the founding of the United States, the Federal Government has recognized and protected the sovereign status of Indian Tribes.”
Meanwhile, the plaintiffs challenging the ICWA say the law fails to consider the best interests of a child, requiring instead that placements be made based on a child’s biology.
In its brief, the state of Texas said the Indian Child Welfare Act often resulted in the placing of Indian children in unfit homes. Justice Elena Kagan agreed with Kneedler that the Texas brief’s argument was not based on law, but merely an attempt to envelop the case in a certain “atmosphere.”
Although the Supreme Court has a 6-3 conservative majority, Kappelman said it’s not a certainty that a majority of the justices will rule to invalidate the ICWA because tribal issues don’t align with political ideology. He said Justice Neil Gorsuch, a Trump appointee, has vigorously defended tribal rights.
During the course of the oral arguments, Gorsuch strongly suggested he would vote to uphold the ICWA.
“I guess I’m struggling to understand why this falls on the other side of the line when Congress makes the judgment that this is essential to preservation of Indian tribes,” Gorsuch told a lawyer challenging the law.
As far as why the Supreme Court decide to hear the case, Kappelman said he did not know. But tribal rights have been in the bullseye for some time, he said.
“There have always been groups that do not like any kind of unique status for Native Americans,” he said.
If the Supreme Court decides the Indian Child Welfare Act is unconstitutional, it will be the second time the conservative-leaning court undercuts tribal sovereignty.
In June of this year, the court ruled for the first time that states have jurisdiction, alongside the federal government, to prosecute crimes in Indian country.
The 5-4 opinion overturned nearly 200 years of precedent and practice.