The Supreme Court is grappling with a case involving the rights of Native American tribes
The conservative majority on the U.S. Supreme Court appeared conflicted on Wednesday as the justices heard arguments challenging India’s Child Welfare Act, known by the acronym “ICWA.”
The law was enacted more than 40 years ago after a congressional investigation found that public and private agencies removed a third of all Indigenous children from their homes and placed most of them in institutions. or homes unrelated to Native American tribes.
ICWA has established minimum federal standards for removing Indigenous children from their homes. It required state courts to notify tribes when a Native American child was removed from their family, and it required that, in fostering and adoption placements, preference be given first to the extended family of the child, then to the other members of the tribe and, if neither is available, it is best that the child be placed in a different tribe.
In court Wednesday, attorneys for the state of Texas and non-Native adoptive parents told judges that the ICWA violated the Constitution by discriminating on the basis of race. But the tribes and the U.S. government have countered that the courts have long considered Native Americans a political group, not a racial group.
Some of the justices noted that if the court struck down the ICWA, “legions” of cases dating back to the early days of the Republic would also have to be struck down.
Justice Neil Gorsuch noted that the Constitution gives Congress plenary authority, that is, complete authority, to legislate on behalf of American Indians.
Like several other justices, he said objections to ICWA are really objections to policy choices that Congress has enacted into law. Your arguments “are best handled across the street,” he said. This means that if some people don’t like the law, they should go to Congress, not to the courts.
Judge Samuel Alito admitted that “honestly” I “had this great difficulty dealing with this article that I question”. Article I of the Constitution gives Congress the plenary power to legislate on behalf of Indians as a political group. “If plenary means plenary, Congress can do whatever it wants… It’s an easy case,” Alito said. But “if there are limits, it is difficult for me to see what the limits are”.
Court liberals joined Gorsuch in noting that the court has long viewed Native Americans as a political, not a racial group; the tribes are considered separate sovereigns under the Constitution. For centuries, Congress has viewed its treaties with Indian tribes as conferring a federal responsibility to support tribal self-reliance and economic prosperity, duties that flow from the government’s treaty guarantees to protect Indian tribes and respect their sovereignty.
Judge Elena Kagan noted that the ICWA was enacted for a particular purpose, namely to protect the very existence of tribes at a time when large numbers of indigenous children were being removed, often forcibly, from their tribal homes.
Gorsuch, a Western conservative who has been a strong supporter of Indigenous rights, asked what would happen if ICWA was canceled: what other Indigenous programs and protections would fall.
Deputy Government Solicitor General Edwin Kneedler responded that many other programs established for Native Americans could fall, including the program that provides health care to Indians, as well as laws that protect American Indian lands. , fishing and hunting rights, laws which, he pointed out, are based on treaties with the US government.
But several conservative justices noted that the court would not and did not accept laws prohibiting children from being adopted by parents of a different race. This, they noted, would be a clear case of racial discrimination.
Representing the state of Texas, state Solicitor General Judd Stone argued that while Congress had the power to legislate to protect the tribes, Congress did not have the power to enlist the governments of the tribes. states in law enforcement.
Judge Sonia Sotomayor pointed to a wide variety of other federal laws that require states to comply with federal and non-state standards. Laws, for example, that tell states they cannot hold a custody or adoption hearing involving a deployed military member.
Those who challenge the ICWA have argued that Congress cannot legislate for American Indians who do not live on a reservation. This prompted Judge Gorsuch to observe that in the West, American Indians live on a “checkerboard” of land, with many on reservations, and their Indian neighbors living nearby, but not on reservations.
But Chief Justice Roberts and fellow conservatives Brett Kavanaugh, Clarence Thomas and Alito have repeatedly focused on ICWA’s third preference for placement in a tribal home, instead of adoption from a non-native family. .
As Roberts put it, “is jurisdiction the threshold or…is the agency authorized to consider the relative best interests of the two different proposed placements” of a child.
Deputy Solicitor General Kneedler said the purpose of ICWA is to prevent children from being taken from their “family, extended family, tribe and relatives”.
But the chief justice seemed obsessed with the “third preference” in the hierarchy which generally favors Indian placements. “Do you think ICWA incorporates the well-known interest of the child investigation?” He asked.
Ian Gershengorn of Tribes responded that ICWA imposed tribal preferences because Congress found that the best interests of the child standard was applied in a discriminatory manner, to the detriment of Indians. In this case, he said, there is no “third preference” under consideration. Additionally, he said, the ICWA has a provision allowing for a “best interests” exemption in certain cases.
Justice Kagan went on to point out, “You said it’s obvious that when you remove 30% of the children from a political community, you harm that political community. But, she observed, “I think some of the strong feelings about this case come from a feeling of, yeah, but what about the kids? … Are you say that the political community is more important than the welfare of children?”
To this and other similar questions, Gershengorn replied that there was no way to assess this. The case in court, he said, should not have been granted for consideration. This is a “face challenge”, he told the judges, and to prevail the challengers must prove that no application of the law would be constitutional. But unlike most cases in court, he observed, this one was simply not fully argued in the lower courts. There are no findings of fact in the case brought by the lead plaintiffs, a white couple trying to adopt a Native American child. The case is due to go to trial in Texas next month.