U.S. Supreme Court

Indian adoption law upheld by Supreme Court, but equal protection issue remains undecided

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The U.S. Supreme Court has upheld the Indian Child Welfare Act in a 7-2 opinion, holding that Congress had the power to enact the law. Image from Shutterstock.

The U.S. Supreme Court has upheld a federal law giving preferences to tribes in Native American adoptions but left consideration of challengers’ equal protection argument for a future case in which plaintiffs have standing to raise it.

The Supreme Court upheld the Indian Child Welfare Act in a 7-2 opinion, holding that Congress had the power to enact the law. Justice Amy Coney Barrett wrote the majority opinion.

The Indian Child Welfare Act “requires a state court to place an Indian child with an Indian caretaker, if one is available,” Barrett explained. “That is so even if the child is already living with a non-Indian family and the state court thinks it in the child’s best interest to stay there.”

Barrett said the U.S. Constitution reserves for the tribes “an enduring place” in the structure of American life. The Constitution ensures that promise by divesting states of authority over Indian affairs and giving the federal government certain powers “aimed at building a lasting peace,” she wrote.

“In adopting the Indian Child Welfare Act,” Barrett wrote, “Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please, the right of Indian children to grow in their culture, and the right of Indian communities to resist fading into the twilight of history.”

Among those who challenged the law were several couples who wanted to adopt or foster Native American children. They argued that the federal law places them on “unequal footing” with Indian parents who seek to foster or adopt Native American children in violation of the equal protection clause.

The majority did not reach that argument on Article III standing grounds.

The challengers had sought an injunction barring federal parties from enforcing the Indian Child Welfare Act. But state courts and state agencies apply the law, and they can’t be enjoined unless they were parties to the challengers’ lawsuit, the majority said. The state of Texas had made a similar argument, but it can’t raise equal protection rights on behalf of its citizens against the federal government, Barrett said.

For plaintiffs to have standing under Article III of the Constitution, they must suffer an injury in fact that is “fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief,” Barrett said. “Neither the individual petitioners nor Texas can pass that test.”

In a concurring opinion, Justice Brett Kavanaugh said he viewed the undecided equal protection issue as serious, and the Supreme Court will be able to address it when a plaintiff with standing raises it.

Justice Clarence Thomas and Samuel Alito wrote separate dissents. Alito said he would have held that Congress lacked constitutional authority “to displace long-exercised state authority over child custody proceedings” to advance tribal interests “at the expense of vulnerable children and their families.”

The ABA had filed an amicus brief urging the Supreme Court to uphold the law. The ABA argued that Congress enacted the statute “under valid constitutional authority and on the basis of an extensive body of evidence and law.”

ABA President Deborah Enix-Ross praised the decision in this statement:

“The American Bar Association applauds the U.S. Supreme Court’s decision on Thursday that agrees with the association’s amicus brief in favor of upholding the Indian Child Welfare Act (ICWA). As the amicus brief argued, the ICWA is carefully designed to protect Indian children and parents from discrimination and to ensure they have the same rights and legal protections to family integrity as other children and parents. It is reassuring that the Supreme Court concluded the act is consistent with Congress’ authority under its constitutional Indian affairs powers.”

The case is Haaland v. Brackeen. Hat tip to SCOTUSblog.

Story updated on June 16 at 7:43 a.m. to add statement by Enix-Ross.

See also:

ABAJournal.com: “Supreme Court will consider future of Indian Child Welfare Act”

ABAJournal.com: “Federal court in Texas declares Indian Child Welfare Act unconstitutional”

ABAJournal.com: “Supreme Court to consider law that gives preferences to tribes in Native American adoptions”

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