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Supreme Court Upholds Native American Adoption Law
At issue in the case was whether a law aimed at keeping Native American adoptees within tribes is constitutional.

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A woman wearing a pink patterned shirt and black pants climbs the steps of the Supreme Court next to a statue.
Nita Battise, a member of the Alabama-Coushatta tribe, celebrated the ruling on the steps of the Supreme Court on Thursday.Credit...Kenny Holston/The New York Times
By Abbie VanSickle
Reporting from Washington

June 15, 2023
Updated 7:51 p.m. ET
The Supreme Court on Thursday upheld a 1978 law aimed at keeping Native American adoptees with their tribes and traditions, handing a victory to tribes that had argued that a blow to the law would upend the basic principles that have allowed them to govern themselves for years.

Justice Amy Coney Barrett, writing for the majority, affirmed the power of Congress to make laws about Native American tribes and child welfare. But the ruling did not resolve the question of whether the law, the Indian Child Welfare Act, discriminated against non-Native families based on race.

The vote was 7 to 2, with Justices Clarence Thomas and Samuel A. Alito Jr. dissenting.

The case pitted a white foster couple from Texas against five tribes and the Interior Department as they battled over the adoption of a Native American child.

Under the act, preference is given to Native families, a policy that the couple said violated equal protection principles because it hinges on placement based on race.

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The tribes have said that they are political entities, not racial groups. They argued that doing away with that distinction, which underpins tribal rights, could imperil nearly every aspect of Indian law and policy, including measures that govern access to land, water and gaming.

The majority dismissed the equal protection argument, saying that no party in the case had legal standing. Instead, the justices focused on Congress’s longstanding authority to make laws about tribes and rejected claims by the challengers in the case, the Brackeens, that states, not the federal government, should be addressing issues of family law.

“Our cases leave little doubt that Congress’s power in this field is muscular, superseding both tribal and state authority,” Justice Barrett wrote, adding that its authority touched on subjects as varied as criminal defense, domestic violence, property law, employment and trade. She added, “The Constitution does not erect a firewall around family law.”

In their dissenting opinions, Justices Thomas and Alito asserted that Congress had overstepped.

The majority, Justice Alito wrote, had lost sight of those most at risk: children.

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The majority “decides one question after another in a way that disserves the rights and interests of these children and their parents, as well as our Constitution’s division of federal and state authority,” he added.

Justice Thomas wrote that the legislation exceeded the federal government’s power, adding that some of the Native American children involved in the adoptions “may never have even set foot on Indian lands.”

He added that the Indian Child Welfare Act “lacks any foothold in the Constitution’s original meaning.”

In sidestepping the equal protection argument, the justices appear to have left the door open to challenges on whether the law is racially discriminatory. Justice Brett M. Kavanaugh, in a concurring opinion, wrote that question deserved consideration.

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“In my view, the equal protection issue is serious,” he wrote. The Indian Child Welfare Act, he added, can deny a child or an adoptive family a placement “because of the child’s race — even if the placement is otherwise determined to be in the child’s best interests.”

Justice Kavanaugh added, “Courts, including ultimately this court, will be able to address the equal protection issue when it is properly raised.”

In another concurring opinion, Justice Neil M. Gorsuch, who has emerged as a fierce advocate of tribal rights, emphasized the fraught history of the legislation, writing that it was meant to remedy the forcible removal of Indian children from their families.

“In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike,” he wrote.