A recent Supreme Court decision upheld a federal adoption law meant to keep Native American children with tribal families.
In a 7-2 decision, the majority rejected a challenge in Haaland vs. Brackeen from a Texas couple who argued that the Indian Child Welfare Act of 1978 interfered with state adoption policies and that the law’s preferential treatment for tribal families was discriminatory, as previously reported by The Dallas Express.
The ICWA prioritizes placing and keeping Native American children up for adoption with members of their extended family or other members of their tribe. If neither of these options is possible, attempts must be made to place the children with members of another tribe. Only after these options have been exhausted can the children be considered for placement with non-Native American families.
The Court upheld the Act even in opposition to the express wishes of the biological parents in each of the test cases before the Court. In fact, all three groups of petitioners in the consolidated cases included the biological parents who wished to grant custody to non-Native American families of their choosing over the intent of the ICWA.
The case is intriguing for what has mostly gone unnoticed by pundits — the dissenting opinion of Justice Clarence Thomas.
Widely viewed as the most conservative member of the Court, Thomas generally adheres to an “originalist” interpretation of the Constitution, meaning that he is guided by what he thinks the original drafters of the Constitution intended.
Thomas argued in his dissent that none of the sources the majority cited to legitimate the ICWA would be sufficient to grant it “a power to regulate U. S. citizens outside of Indian lands merely because those individuals happen to be Indians.”
According to Thomas, the Constitution contains one “Indian-specific power” in the form of the Indian Commerce Clause. He maintains that the drafters of the Constitution implicitly rejected tribal authority over “Indian affairs” in general.
“[T]he Constitution’s enumerated powers cannot support ICWA. Not one of those powers, as originally understood, comes anywhere close to including the child custody proceedings of U. S. citizens living within the sole jurisdiction of States,” Thomas wrote.
The ICWA can intervene in state court child welfare proceedings even when U.S. citizens have not “even set foot on Indian land or have any desire to affiliate themselves with a tribe,” simply because the child is eligible for membership in a tribe, Thomas explained.
“[E]ven if the biological parents, the child, the adoptive parents, and the court all agree on what is best for the child, the tribe can intervene at the eleventh hour, without any consent from the parents or child, and block the proceedings,” he noted.
Thomas concluded, stating, “Congress lacked any authority to enact ICWA,” describing it as a “patent intrusion into the normal domain of state government and [a] clear departure from the Federal Government’s enumerated powers.”
The Dallas Express reached out to Matthew D. McGill, who represented the Brackeen family, for a comment. A spokesman for his law firm, Gibson, Dunn & Crutcher LLP, responded with a statement.
“Our main concern is what today’s decision means for the little girl, Y.R.J. — now five years old — who has been a part of the Brackeen family for nearly her whole life,” the statement reads.
“The Court did not address our core claim that ICWA impermissibly discriminates against Native American children and families that wish to adopt them, saying it must be brought in state court,” the statement continues. “As Justice Kavanaugh observed today, that equal protection claim is ‘serious,’ and we will ask the state court to address it in the Brackeens’ upcoming trial to adopt Y.R.J.”
Joining the Court’s majority opinion in full, Justice Brett Kavanaugh wrote a concurring opinion “to emphasize that the Court today does not address or decide the equal protection issue that can arise when the Indian Child Welfare Act is applied in individual foster care or adoption proceedings.”
“In my view, the equal protection issue is serious. Under the Act, a child in foster care or adoption proceedings may in some cases be denied a particular placement because of the child’s race — even if the placement is otherwise determined to be in the child’s best interests,” Kavanaugh wrote.
“And a prospective foster or adoptive parent may in some cases be denied the opportunity to foster or adopt a child because of the prospective parent’s race. Those scenarios raise significant questions under bedrock equal protection principles and this Court’s precedents,” he added.
The equal protection issue was not before the Court and remains undecided because the plaintiffs lacked standing.