by Ariane de Vogue
The Supreme Court on Thursday left intact a decades-old law that prioritizes the placement of Native American children with Native families or tribes in child custody proceedings, rejecting challenges brought by several adoptive parents.
The law was passed in 1978 to protect tribal sovereignty after Congress documented the alarmingly high number of children with Native American ancestry being placed with non-Native families or institutions in state child welfare and private adoption proceedings.
The 7-2 decision backs the law passed in the wake of decades of hostility on the part of the federal government when it comes to child custody issues and traditional values of Indian tribes.
Justice Amy Coney Barrett, writing for the majority, said Congress did not exceed its authority in passing the law.
“In a long line of cases we have characterized Congress’ power to legislate with respect to the Indian tribes as plenary and exclusive,” she wrote.
“Congress’s power to legislate with respect to Indians is well established and broad,” Barrett wrote, but acknowledged that the court’s precedent in the area has been “unwieldy.”
She noted that in general, Congress lacks a general power over domestic relations, but that the Constitution does not erect a “firewall around family law.”
The case pitted the interest of Native American tribes, who said their existence as sovereign nations was on the line, against non-Native couples seeking to foster or adopt children with Native ancestry.
The opinion, which is a defeat for the couples who challenged the law, upheld a lower court’s ruling that the law is consistent with Congress’ authority.
The Indian Child Welfare Act was enacted as a response to serious harms caused by widespread child welfare practices that resulted in the separation of Indian families, and adoption or foster placement in non-Indian homes.
It was passed in part to rectify past government programs that resulted in abuse and the breakup of Indian families and applies to children living off-reservation who are involved in custody disputes in state courts. A provision of the law requires any party seeking an Indian child’s removal from the tribe to give notice to the child’s parent (or custodian) or tribe. It establishes standards for the placement of Indian children in foster homes that require a preference be given “absence of good cause to the contrary” with a member of the child’s extended family, other members of the child’s tribe or other Indian families.
A lawyer for the private individuals had argued that the law discriminated on the basis of race in violation of the Constitution and does not serve the best interest of the child.
This story is breaking and will be updated.
