June 26, 2023 at 2:15 p.m.
Tribes win major decision in adoption lawsuit
Kavanaugh warns the case will return with proper plaintiffs
In the case, Haaland v Brackeen, the state of Texas and three non-Native American couples who had tried to foster or adopt children with Native American ancestry contested the law as race-based and unconstitutional. Joining those plaintiffs was a woman who wished for her Native American biological child to be adopted by non-Native Americans.
But the court rejected the challenge to the law on a 7-2 vote, with justices Samuel Alito and Clarence Thomas dissenting. Chief justice John Roberts joined justices Elena Kagan, Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson in the majority.
The 1978 law, which seeks to keep Native American children with Native American families, establishes minimum standards for removing Native American children from their families and establishes a preference that Native American children who are removed from their families be placed with extended family members or in Native American foster homes.
Under the law, tribal courts have jurisdiction over child-custody proceedings involving Native American children who live or have permanent residence on tribal land. However, for the millions who do not have residence on tribal land, the law's minimum standards apply.
Among other things, including the discrimination issue, the plaintiffs argued that the law was unconstitutional because it went beyond the powers that the constitution gives to Congress to regulate commerce with Indian tribes. In effect, the challengers contended, states rather than Congress hold the power to regulate adoption and child-custody proceedings.
Writing for the majority, Amy Coney Barrett was having none of that argument.
"Petitioners contend that ICWA exceeds Congress's power," Barrett wrote. "Their principal theory, and the one accepted by both justice Alito and the dissenters in the Fifth Circuit, is that ICWA treads on the states' authority over family law. Domestic relations have traditionally been governed by state law; thus, federal power over Indians stops where state power over the family begins."
Or so the argument goes, the justice added.
"It is true that Congress lacks a general power over domestic relations, and, as a result, responsibility for regulating marriage and child custody remains primarily with the states," she wrote. "But the constitution does not erect a firewall around family law."
On the contrary, Barrett explained, when Congress validly legislates pursuant to its Article I powers, the court has not hesitated in the past to find conflicting state family law preempted, "[n]otwithstanding the limited application of federal law in the field of domestic relations generally."
"In fact, we have specifically recognized Congress's power to displace the jurisdiction of state courts in adoption proceedings involving Indian children," she wrote. "Petitioners are trying to turn a general observation (that Congress's Article I powers rarely touch state family law) into a constitutional carveout (that family law is wholly exempt from federal regulation)."
That argument is a non-starter, Barrett wrote.
"As James Madison said to members of the First Congress, when the constitution conferred a power on Congress, 'they might exercise it, although it should interfere with the laws, or even the constitution of the states,'" she wrote. "Family law is no exception."
Barrett wrote that the challengers of the law came from the opposite direction, too, arguing that even if there was no family law carveout to the Indian affairs power, Congress's authority does not stretch far enough to justify ICWA.
"Ticking through the various sources of power, petitioners assert that the constitution does not authorize Congress to regulate custody proceedings for Indian children," she wrote. "Their arguments fail to grapple with our precedent, and because they bear the burden of establishing ICWA's unconstitutionality, we cannot sustain their challenge to the law."
As an example of what she was talking about, Barrett pointed to the Indian Commerce Clause, the petitioners' primary focus.
"According to petitioners, the clause authorizes Congress to legislate only with respect to Indian tribes as government entities, not Indians as individuals," she wrote. "But we held more than a century ago that 'commerce with the Indian tribes, means commerce with the individuals composing those tribes.' So that argument is a dead end."
Premature celebration?
Tribal leaders celebrated the 7-2 decision, but the celebration may not be long-lasting, for the issue is likely come back before the court in the future. That's because one of the most contentious arguments - that the ICWA's placement preferences discriminate on the basis of race and violates the equal protection clause of the constitution - was not decided.
The court determined that the petitioners did not have standing to raise those questions.
"The individual petitioners argue that ICWA's hierarchy of preferences injures them by placing them on unequal footing with Indian parents who seek to adopt or foster an Indian child," Barrett wrote. "But the individual petitioners have not shown that this injury is 'likely' to be 'redressed by judicial relief.'"
Petitioners seek an injunction preventing the federal parties from enforcing ICWA and a declaratory judgment that the challenged provisions are unconstitutional, Barrett wrote, yet enjoining the federal parties would not remedy the alleged injury because state courts apply the placement preferences, and state agencies carry out the court-ordered placements.
"The state officials who implement ICWA are 'not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced,'" the decision stated.
Justice Brett Kavanaugh wrote a concurring opinion to underscore that he thinks the equal protection issue is a serious one, even though it remains undecided.
"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."
Kavanaugh predicted the return of the issue to the court.
"Courts, including ultimately this court, will be able to address the equal protection issue when it is properly raised by a plaintiff with standing - for example, by a prospective foster or adoptive parent or child in a case arising out of a state-court foster care or adoption proceeding," he wrote.
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