U.S. Supreme Court debates race-based challenge to Native American adoption law

"How is this an insidious racial classification rather than a political classification?" Gorsuch, who in past cases has signaled sympathy toward Native American interests, asked a lawyer challenging the law. The Indian Child Welfare Act sought to reinforce tribal connections by setting federal standards for removal and placement in foster care or adoption.

U.S. Supreme Court justices appeared divided on Wednesday over the legality of decades-old federal requirements that give preferences to Native Americans and tribal members in the adoption or foster care placements of Native American children. The justices heard about three hours of arguments in a challenge to the law by a group of non-Native American adoptive families and the Republican-governed state of Texas after lower courts declared parts of it unconstitutional. Democratic President Joe Biden's administration and several Native American tribes are defending the law.

While the justices did not appear willing to strike down the Indian Child Welfare Act of 1978, their questions revealed divisions over whether the U.S. Congress overstepped its authority in passing it. They also appeared split over whether some of the preferences under the law racially discriminate against non-Native Americans in violation of the U.S. Constitution's Fifth Amendment promise of equal protection under the law, as the plaintiffs contend. The law gives "preference" to members of a child's extended family, other tribe members or "other Indian families" in adoptions. Some of the conservative justices raised concerns about the third preference, which can include members of a different tribe.

Conservative Justice Brett Kavanaugh said it would not be permissible for "Congress to say that white parents should get preference for white children in adoption, or that Latino parents should get preference for Latino children." Conservative Justice Amy Coney Barrett said, "This is just treating Indian tribes as fungible."

The court has a 6-3 conservative majority. The three liberal justices and conservative Justice Neil Gorsuch said Congress viewed the preferences as necessary to protect the sovereign tribes from extinction. "How is this an insidious racial classification rather than a political classification?" Gorsuch, who in past cases has signaled sympathy toward Native American interests, asked a lawyer challenging the law.

The Indian Child Welfare Act sought to reinforce tribal connections by setting federal standards for removal and placement in foster care or adoption. Congress passed it to address a state-level crisis of unwarranted removals of Native American children from their families and placement in non-Native American foster or adoptive homes. At the time, between 25% and 35% of all Native American children were removed in states with large Native American populations, according to court papers.

The lawsuit, first filed in 2017, was brought by Texas and three non-Native American families who sought to adopt or foster Native American children. They include Texas couple Jennifer and Chad Brackeen, who in 2018 adopted a child whose mother is a member of the Navajo Nation. The Brackeens are currently in a battle with the tribe as they seek to adopt the boy's half-sister. Matthew McGill, the lawyer representing the Brackeens, told the justices that Congress exceeded its authority in establishing a regime that puts non-Native American families "at the bottom of the list" for adoptions.

"Congress does not have the power to treat these children as property of the tribes under the Constitution," McGill said. Texas contends the Indian Child Welfare Act created an overt racial-discrimination system.

Liberal Justice Elena Kagan questioned why the law should be seen through a racial lens rather than as legislation relating to the political sovereignty of the tribes, which the court has long recognized Congress had authority over. "Congress is very clear in this statute that it thinks that this statute is critical to the continuing existence of the tribe as a political entity," Kagan said.

Tribal groups have called the challenge an attack on their sovereignty and have said a ruling that broadly undermines the Indian Child Welfare Act could affect issues beyond child welfare including land rights and economic development. The Supreme Court is due to rule by the end of June.

The case is one of three major race-related disputes the court has confronted since the beginning of its current nine-month term last month. The others involve the rights of Black voters in Alabama and race-conscious student admissions policies at Harvard University and the University of North Carolina.