Supreme Court sides with feds, tribes in challenge over American Indian adoptions

The Supreme Court batted down a challenge Thursday from non-Indian families hoping to adopt American Indian children, with the justices backing a federal law that says Indian children should generally be placed with their tribes.

The 7-2 ruling rejected claims that the Indian Child Welfare Act, which was drafted to protect tribal children from being taken outside their communities, violates the Constitution’s 10th Amendment by forcing states to place children with tribes even when judges don’t believe it’s in the best interest of the child.

But the justices did not decide more tricky questions about whether the law violates the Constitution’s Equal Protection Clause.

---

---

Justice Amy Coney Barrett wrote the majority opinion, reasoning that the court’s precedent has long held Congress has authority to legislate Indian affairs and preserve those interests. 

“Congress’s power to legislate with respect to Indians is well established and broad. Consistent with that breadth, we have not doubted Congress’s ability to legislate across a wide range of areas, including criminal law, domestic violence, employment, property, tax, and trade,” Justice Barrett wrote.

Justices Clarence Thomas and Samuel A. Alito Jr. disagreed with the majority. In a dissent, Justice Thomas said the federal government was intervening in state court adoption proceedings, which should “raise alarm bells.”

“All other powers (like family or criminal law) generally remain with the States. The Federal Government thus lacks a general police power to regulate state family law,” he wrote.

Justice Alito said in his dissent that federal law is subverting the best interest of the child and intervening in state court proceedings. 

“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 said.

The legal battle was led by Jennifer and Chad Brackeen. They welcomed Zachary into their Texas home as a foster placement in 2016 and sought to adopt him a year later after his birth parents’ rights were terminated. Though the birth parents — both Indians — supported the adoption, the Brackeens did not have Navajo ties, which spelled trouble for their court proceedings.

In ordinary circumstances, state courts or governments consider the best interests of the child, but Zachary’s birth mother is Navajo. So under the Indian Child Welfare Act, decisions by courts about adoptions of American Indian children shift to tribal hands and away from states.

The Brackeens, along with two other families, had challenged the Indian Child Welfare Act as unconstitutional.

The 5th U.S. Court of Appeals generally sided with the Brackeen family, though the judges were divided over some aspects of the ruling. They deadlocked on the key question of whether the law’s requirement that tribal placements be preferred violated the 14th Amendment’s equal protection clause. They reasoned the law violated the 10th Amendment, though, siding with the families. 

Thursday’s ruling from the high court reversed that finding.

Tribes have said that a long history of discrimination informs the federal law giving them preference — and protection — of tribal placement of Indian children.

The tribes argue the Indian Child Welfare Act, enacted in 1978, was intended to give them a chance to assert their desire to have Indian children raised by their communities.

Census Bureau data from a decade ago show that roughly 18,000 American Indians or Alaska Natives younger than 18 were adopted. The National Indian Child Welfare Association estimates that 56% of those children were placed in homes outside their tribal communities.