Updated: 8:38 a.m.
The U.S. Supreme Court's conservative majority seemed conflicted Wednesday, as the justices heard arguments challenging the Indian Child Welfare Act, known by the acronym "ICWA."
The law was enacted more than 40 years ago after a congressional investigation found that public and private agencies had removed a third of all Native children from their homes and placed most of them in institutions or homes with no ties to Native American tribes.
ICWA established minimum federal standards for removing native children from their homes. It required state courts to notify tribes when an American Indian child is removed from her family, and it required that in foster and adoption placements, preference be given first to a child's extended family, then to other members of the tribe, and, if neither is available, the preference is for a child to be placed with a different tribe.
In the court Wednesday, lawyers for the state of Texas and for non-Native adoptive parents told the justices that ICWA violates the Constitution by discriminating based on race. But the tribes and the U.S. government countered that the courts have long considered American Indians to be a political group, not a racial group.
Some of the justices noted that if the court were to strike down ICWA, "legions" of cases dating back to the early days of the Republic, would have to similarly be struck down.
Justice Neil Gorsuch noted that the Constitution gives Congress plenary authority, meaning complete authority, to legislate on behalf of Native Americans.
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Like several other justices, he said the objections to ICWA in reality are objections to the policy choices that Congress adopted in the law. Your arguments "are better addressed across the street," he said. Meaning, that if some people don't like the law, they should go to Congress, not to the courts.
Justice Samuel Alito admitted that "I honestly" have "had this great difficulty dealing with this Article I question." Article I of the Constitution gives Congress the plenary power to legislate on behalf of Indians as a political group. "If plenary means plenary, Congress can do whatever it wants....It's an easy case," Alito said. But "if there are limits, it's hard for me to see what the limits are."
The court's liberals joined Gorsuch in noting that the court has long viewed American Indians as a political group, not a racial one; the tribes are viewed as separate sovereigns under the Constitution. Congress has for centuries seen its treaties with Indian tribes as conferring a federal responsibility to support tribal self-government and economic prosperity, duties that stem from the government's treaty guarantees to protect Indian tribes and respect their sovereignty.
Justice Elena Kagan noted that ICWA was enacted for a particular purpose — namely to protect the tribes very existence at a time when huge numbers of Native children were being taken, often by force, from their tribal homes.
Gorsuch, a Western conservative, who has been a staunch supporter of Native rights, asked what would happen if ICWA is struck down: what other native programs and protections would fall.
The government's Deputy Solicitor General Edwin Kneedler replied that many other programs established for Native Americans could fall, including the program that provides health care for Indians, as well as laws that protect American Indian lands, fishing, and hunting rights, laws that, he stressed, are based on treaties with the U.S. government.
But several conservative justices noted that the court would not, and has not, accepted laws that ban children from being adopted by parents of a different race. That, they noted would be a clear case of race discrimination.
Representing the state of Texas, state Solicitor General Judd Stone argued that even if Congress does have the authority to legislate to protect the tribes, Congress does not have the authority to enlist state governments in enforcing the law.
Justice Sonia Sotomayor pointed to a wide variety of other federal laws which require states to abide by federal, not state standards. Laws, for instance, that tell states they cannot conduct any custody or adoption hearing that involves a service member who is deployed.
Those challenging ICWA maintained that Congress cannot legislate for American Indians who do not live on a reservation. That prompted Justice Gorsuch to observe that in the West, American Indians live on a "checkerboard" of land, with many on reservations, and their Indian neighbors living close by, though not on reservations.
But Chief Justice Roberts, and fellow conservatives Brett Kavanaugh, Clarence Thomas, and Alito focused repeatedly on ICWA's third preference for placement in a tribal home, instead of adoption by a non-Native family.
As Roberts put it, "Is competence the threshold or ... is the agency allowed to consider the relative best interests of the the two different proposed placements" of a child.
Deputy Solicitor General Kneedler said the purpose of ICWA is to prevent children from being taken away from their "families, from their extended families, from their tribes and their kin."
But the chief justice seemed fixated on the "third preference" in the hierarchy that generally prefers Indian placements. "Do you think that ICWA incorporates the familiar best interest of the child inquiry?" he asked.
The tribes' Ian Gershengorn replied that ICWA imposed the tribal preferences because Congress found the best interests of the child standard was being applied in a discriminatory way, to disadvantage Indians. In this case, he said, there is no "third preference," under consideration. What's more, he said, ICWA does have a provision allowing a "best interests" exemption in some cases.
Justice Kagan followed up, pointing out, "You said it's obvious that when you remove 30% of children from a political community, you harm that political community." But, she observed, "I think some of the strong feelings about this case come from a sense of, yes, but what about the children? ... Are you saying that the political community is more important than the welfare of the children?"
To this and other similar questions, Gershengorn replied that there is no way to evaluate that. The case before the court, he said, should not have been granted for review. This is a "facial challenge," he pointedly told the justices, and to prevail, the challengers have to prove that no application of the law would be constitutional. But unlike most cases that come to the court, he observed, this one simply has not been fully litigated before the lower courts. There are no findings of fact in the case brought by the lead plaintiffs, a white couple trying to adopt an Native American child. Indeed, the case is scheduled to go to trial in Texas next month.
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