The US supreme court has ruled that Native American children can continue to be protected under federal law against being removed from their tribal communities for fostering or adoption, rejecting a petition from a white couple who argued that the provision was a form of racial discrimination.
The supreme court’s decision upholds decades of federal law that gives Native Americans and tribal members preference in the adoption or foster care of Native American children.
By a vote of 7 to 2, the justices rejected the challengers’ claim that the requirement was a form of unconstitutional racial bias against non-Native Americans.
The case ultimately pitched the Brackeen family of Texas against the interior secretary, Deb Haaland, for the US government. It amounted to a victory for hundreds of tribal groups.
They had united to call for a retention of the law which requires Native children to be placed as a priority within their own extended families, tribes or other Native communities. They argued that the status quo was essential for the survival of tribes themselves.
The decision preserves the Indian Child Welfare Act (ICWA), a 1978 law that has helped stabilize Native American families and uphold tribal sovereignty. Congress passed the legislation to end a longstanding practice in the US of removing many Native American children from their families and placing them with non-Native Americans.
At the time the law was enacted, up to 35% of all Native American children were removed in states with large Native American populations.
The ruling, Haaland v Brackeen, was written by the conservative justice Amy Coney Barrett. She was joined by three other rightwing justices and their three liberal-leaning peers, with Clarence Thomas and Samuel Alito dissenting.
The seven-strong majority swept away all of the challenges to the ICWA that had been presented to the court by the state of Texas and the family petitioners who had argued that the law overrode the right of states to control family law. Barrett wryly commended the “creative arguments” brought by Texas, but roundly dismissed them.
“The bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing,” she wrote. She added that the supreme court had already recognised “Congress’s power to displace the jurisdiction of state courts in adoption proceedings involving Indian children”, and called the claim that to do so was unconstitutional “a nonstarter”.
Tribal leaders hailed Thursday’s decision as an important win.
An alliance of Native American representatives, including Chuck Hoskin of the Cherokee Nation and Charles Martin, chairman of the Morongo Band of Mission Indians, said in a statement that the ruling was “a major victory for Native tribes, children, and the future of our culture and heritage”.
They added that they hoped it would “lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long”.
Joe Biden also praised the court for keeping in place a “vital protection for tribal sovereignty”. The president said that looming over the decision was “our nation’s painful history. In the not-so-distant past, Native children were stolen from the arms of the people who loved them … all with the aim of erasing who they are as Native people and tribal citizens.”
The constitutionality of the ICWA was challenged by a white Texas couple, Chad and Jennifer Brackeen, who had wanted to adopt a Navajo child against the will of the Navajo Nation. The couple petitioned the court, arguing that the law’s requirement that an adoptive home should at first be sought within the child’s own Native community was a form of racial discrimination.
About 486 tribes and 59 regional tribal organizations filed supporting briefs to the supreme court arguing that the ICWA should be upheld. They argued that the legislation was in the best interests of Native children and that for the purposes of this law, Native Americans should be regarded not as a racial group but as a political class with their own sovereign status.
Groups such as the American Civil Liberties Union (ACLU) warned that overturning the ICWA would put “the very existence of tribes in jeopardy”. Experts warned it could also cast into doubt hundreds of treaties drawn up between US and state governments and sovereign tribal entities.
Both Thomas and Alito delivered dissenting opinions. In his long dissent, Thomas accused the majority on the supreme court bench of running roughshod over “the normal limits on the federal government’s power to regulate state child custody proceedings … when the child involved happens to be an Indian”.
The law at the center of the new ruling was devised as a response to the widespread 19th-century practice by the US government and individual states of removing children from Native American families in an effort to assimilate them into white American culture. The Bureau of Indian Affairs created 350 boarding schools designed to “civilize” the children.
By the 1920s more than eight out of 10 Native American children of school age were placed in such boarding schools where they were harshly punished, ill-fed and badly educated. The practice continued into the 1970s when up to 35% of Native children were still removed from their families.
The new ruling sounds a more cautious note from the rightwing justices who now control the majority on the nation’s most powerful court. Last June in Oklahoma v Castro-Huerta they took a more aggressive stance, setting aside a precedent that had been standing since 1886 and as a result giving states the ability to prosecute non-Natives for crimes committed against tribal members on their reservations.
