WASHINGTON — A decades-old law aimed at protecting Native American children and buttressing tribal identity goes before the Supreme Court on Wednesday as the justices debate several legal attacks, including one on whether a provision that gives tribal members preference in adoption proceedings is unlawful.
Tribes say a ruling in favor of the challengers would gut a landmark 1978 law called the Indian Child Welfare Act, which was enacted to help keep Native American children within tribes when possible — a response to a long history in which children were disproportionately removed from families by both states and the federal government.
Among the provisions being challenged is one that gives a preference to Native Americans seeking to foster or adopt Native American children, which those challenging the law say discriminates on the basis of race.
The challengers are led by Chad and Jennifer Brackeen — a white evangelical Christian couple who sought to adopt a Native American boy — as well as the states of Texas, Indiana and Louisiana. The couple successfully adopted the child after a potential placement with a Navajo family fell through. They are also seeking to adopt the child’s half-sister, who currently lives with them.
The challengers mount a host of arguments, the most notable of which is that the preference language violates the constitutional provision that all laws apply equally to everyone. They also argue that Congress does not have the power to legislate on state adoption proceedings in violation of the so-called “anticommandeering doctrine” derived from the 10th Amendment that says the federal government cannot enlist states to enforce federal laws.
Matthew McGill, who is representing the Brackeens and two other families, said the law upends the normal procedure for handling an adoption, which traditionally focuses on the best interests of the child.
“It s a pretty profound example in our view of racial discrimination,” the lawyer said on a call with reporters.
The law is being defended by the Biden administration and five tribes: the Navajo, Cherokee, Oneida and Quinault Indian nations and the Morongo Band of Mission Indians. The tribes strenuously deny the law discriminates on the basis of race, saying it focuses on tribal identity, which is akin to nationality and is not a race-based distinction.
Chrissi Ross Nimmo, Cherokee Nation’s deputy attorney general, told reporters the case is part of a larger attempt to “diminish the political status of tribes” by conflating tribal identity with race.
“This is absolutely not about what is best for Indian children,” she said of the lawsuit.
Tribes have also warned that a ruling striking down provisions of the law on racial discrimination grounds would threaten centuries of law that treat Native American tribes as distinct entities.
Both sides appealed to the Supreme Court after the New Orleans-based 5th U.S. Circuit Court of Appeals last year issued a splintered decision in which judges were divided on the key issues. A district court judge had previously held that the law was unconstitutional.
The Supreme Court has been closely divided in two major recent cases on Native American issues. In 2020, the court expanded tribal authority in Oklahoma in a 5-4 ruling authored by conservative Justice Neil Gorsuch. But in a follow-up case this year seeking to limit the impact of the earlier ruling, the court reversed course, ruling 5-4 to widen state power over tribes in certain instances.
In the period between the two rulings, liberal Justice Ruth Bader Ginsburg, who had sided with the tribes in the 2020 case, died and was replaced by conservative Justice Amy Coney Barrett, creating the court’s current 6-3 conservative majority. Barrett cast the deciding vote against tribes in the second case, while Gorsuch joined the three liberal justices in dissent.