In win for tribal rights, Supreme Court upholds Native adoption law

The U.S. Supreme Court upheld a landmark Native American rights law Thursday in a ruling that surprised tribes – quite pleasantly.

The 7-2 decision in Haaland v. Brackeen dismissed, in part on the merits and in part on procedural grounds, an array of challenges to the Indian Child Welfare Act, a 1978 law regulating foster and adoption proceedings for Native children in state courts. The law has been challenged many times, and it’s likely to be challenged again in the near future.

But the ruling today preserves, for now, a law that tribes view as critical to the best interests of Native children, and critical to preserving the long-term political and cultural viability of Native people as a whole.

“They punted on one or two key issues ... but it’s a very strong endorsement of the law,” says Kevin Washburn, a professor at the University of Iowa College of Law and a former assistant secretary of Indian Affairs.

The law “will remain intact and undisturbed,” he adds, and will continue to “help ensure that Native children remain connected to their tribe and have the opportunity to learn tribal culture.”

Over 130 pages of opinions saw the high court’s conservative majority engage in emotional debates on child welfare, historical debates on the legacy of centuries of harms inflicted on Native Americans, and legal debates on foundational issues like states’ rights and tribal sovereignty.

“The issues are complicated,” wrote Justice Amy Coney Barrett in the majority opinion. “But the bottom line is that we reject all of petitioners’ challenges to the statute.”

A complex law

The Indian Child Welfare Act is a complex statute that exists within the complex field of federal Indian law. Generally speaking, Congress has broad powers to legislate over tribal affairs because the U.S. has a unique “government to government” relationship with tribes. The adoption law is unusual, however, in that it applies federal law to child welfare proceedings in state courts.

The law requires that when a Native child enters custody proceedings in state court, “active efforts” must be made to keep the child in a Native household. It also provides for a hierarchy of placement preferences, meaning a non-Native family can only adopt a Native child if there is no one willing to adopt the child who is an extended family member, another member of the child’s tribe, or another Native family. 

The Haaland case arose from three separate child custody proceedings, and ultimately led to a trio of adoptive parents and the state of Texas appealing the case to the Supreme Court. They argued that the adoption law is unconstitutional on several grounds, including that it racially discriminates against non-Native adoptive parents and unconstitutionally overrides states’ authority over their child welfare systems.

The court’s ruling today only tackled some of those questions. First and foremost, the majority opinion held that the adoption law doesn’t unlawfully intrude on state child welfare powers. While Justice Barrett admitted that, per the court’s precedents, there are (vaguely defined) limits to Congress’ tribal law powers, and that states retain broad powers over domestic affairs like family law, “the Constitution does not erect a firewall around family law,” she wrote.

“Petitioners’ strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law,” she added. “Instead, they frame their arguments as if the slate were clean. More than two centuries in, it is anything but.”

For Kathryn Fort, director of the Indian Child and Welfare Act Appellate Project, keeping the status quo “is just a massive victory.”

“There’s still a lot of work to be done in the area of child welfare, child protection, family reunification,” says Ms. Fort, the director of the Indian Law Clinic at the Michigan State University College of Law and a counsel of record on the tribal defendants’ brief. “I think in some ways we can go back to focusing on ... how to make lives better for the individuals caught up in the child protection system.”

The importance of history

While the majority opinion nodded to history, Justice Neil Gorsuch – in a 40-page concurrence – dove into it. The adoption law “did not emerge in a vacuum,” he wrote, but was instead the result of mass removals of Native children from their homes by state and private child welfare organizations. Those removals, he noted, were a continuation of earlier policies aimed at assimilating Natives in Western society by placing children in government-funded residential schools.

Furthermore, Justice Gorsuch plumbed constitutional legal history to argue that tribal sovereignty – and Congress’ duty to uphold it – outweighed any state child welfare interests.

“The very first Congresses punished non-Indians who ‘commit[ted] any crime upon [any] friendly Indian,’” he wrote. The adoption law “operates in much the same way.”

“Our Constitution reserves for the Tribes a place – an enduring place – in the structure of American life,” he added. “It promises them sovereignty for as long as they wish to keep it.”

Justice Clarence Thomas, often in agreement with Justice Gorsuch in other cases, also performed a deep, originalist-oriented dive into the history of the adoption law. He arrived at the opposite conclusion.

Congress’ authority in tribal affairs has historically related to “matters of war, peace, and diplomacy – not internal affairs like adoption proceedings,” he wrote.

“The court declined to rule on the heart of the case”

The ruling disappointed Mark Fiddler.

An adoption and family law attorney in Minneapolis, and a member of the Turtle Mountain Band of Chippewa Indians, he has campaigned against the Indian Child Welfare Act for years. 

“It wasn’t what I was expecting,” says Mr. Fiddler, who represented plaintiffs in the lower courts. “But the very interesting thing is the court declined to rule on the heart of the case.”

There, Mr. Fiddler is referring to the question raised in the case of whether the adoption law violates the Equal Protection clause of the Constitution because its placement preferences favor Native families over non-Native ones, and could disadvantage Native children over non-Native children. 

While the adoption law has been challenged several times over the years, that particular argument had never been put forward. In today’s ruling, however, the court declined to consider that argument. Since there were no active child welfare proceedings in the case, the plaintiff families could not get relief for those claims from the court’s Haaland ruling.

This is the second case in as many weeks in which the court has rejected a “race neutral” theory of law. In a separate concurrence, Justice Brett Kavanaugh agreed with that conclusion, but wrote that the equal protection issue “is serious.” 

Foster and adoption decisions made on the basis of a family or child’s race “raise significant questions under bedrock equal protection principles and this Court’s precedents,” he added. “Courts, including ultimately this Court, will be able to address the equal protection issue when it is properly raised by a plaintiff with standing.”

Thus, future challenges to the adoption law – and specifically equal protection challenges – are likely. Justice Kavanaugh’s concurrence “is a roadmap for our future,” says Mr. Fiddler. “My takeaway is [the adoption law] lives, but it lives to die another day.”

Matthew McGill, who represented the Brackeens, said he would press a racial discrimination claim in state court. The Brackeens have since adopted another Native child, Y.R.J., and her case is under appeal.

“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,” said Mr. McGill in a statement.

“I couldn’t be happier”

By punting on that equal protection question, the Supreme Court avoided wrestling with a question that could have seismic consequences for tribal sovereignty.

Federal Indian law has always been grounded in the understanding that being a member of a tribe is a political classification, not a racial one. If tribal membership is viewed as a racial classification, not a political one, Native rights advocates claim that it would render all kinds of special tribal privileges, from hunting and fishing rights to gaming, vulnerable to equal protection challenges.

The racial classification argument “resonated with many people on the court, and many observers,” says Alison LaCroix, a professor at the University of Chicago Law School. “It’s not really settled as a matter of law or of public discourse.”

But “you’re also talking about tribal nations that have some degree of sovereignty and autonomy, and this is about possibly stripping them of that,” she adds. “It’s not just about putting people in boxes according to some notion of race.”

As much as anything, the Haaland ruling reinforces Justice Gorsuch’s position as the court’s foremost supporter of tribal sovereignty. Not only did he display it in his Haaland concurrence, but he was the lone dissenter in another decision today concerning tribal immunity from federal bankruptcy law. (He in fact cited his Haaland concurrence in that dissent.)

And the Haaland opinions provide an example of the skilled historical and legal analysis this court – with its conservative, originalist majority – is capable of, experts say.

“We see many, many instances in which the Supreme Court uses history very bluntly, and I think not responsibly,” says Professor LaCroix.

“I was really struck by what a responsible, contextual, informed use of history the opinion made,” she adds. “It’s very welcome, and I hope to see more of it.”

Ultimately, people like Aurene Martin got perhaps the most satisfaction from the court’s decision.

A member of the Oneida tribe in Wisconsin, she has two adopted Native sons – one of whom is from a different tribe. While a ruling in favor of the plaintiff families wouldn’t have meant she lost her son, it would potentially have deprived others of having a family like hers.

“I couldn’t be happier,” she says.

“The idea of family and of children is essential to everybody, right?” she adds. “But for tribes, to have the power to protect our communities and keep them intact, it’s just extremely gratifying to have that recognized by the Supreme Court.”