WASHINGTON — The Supreme Court heard more than three hours of arguments Wednesday in a sprawling challenge to the constitutionality of the Indian Child Protection Act of 1978, which makes it harder to remove Native American children from their tribes and heritage.
The decision in the four consolidated cases could have serious implications for the status of Native Americans in areas far beyond family law. Judging by the judges’ interrogations, there was a good chance that the court would overturn at least part of the law.
Justice Neil Gorsuch, who has become the court’s leading advocate for tribal rights, expressed strong support for the law, as did the court’s three liberal members. But it was unclear if those four judges would get the fifth vote they would need to win.
In June, Gorsuch dissented in a 5-4 decision that reduced the scope of an earlier ruling that placed most of eastern Oklahoma on Indian reservations. At the time, he was joined by the liberal wing of the court, and it seemed possible that Wednesday’s case would be decided in the same vein.
The law at issue in the new case was based on the sovereignty of Native American nations and the history of child abuse involving Native American children. Before the law was passed, hundreds of thousands of indigenous children were taken from their homes, sometimes by force, and placed in orphanages or with families unrelated to their tribes.
“There is no getting around the fact that both the federal history and the state history of Native American tribes bear many very shameful and horrific elements,” said Judd Stone II, the Texas attorney general who argued the law was unconstitutional.
Family courts usually base their decisions on the best interests of the child. The 1978 law said that when it comes to Native American children, those interests include protecting their relationships with tribes.
When Native American children live on tribal land, tribal courts handle child custody cases. When cases involving such children are heard in state court, the 1978 law says judges must take into account a number of preferences “in the absence of compelling reasons to the contrary.”
Native American children, the law says, must be placed with extended family members whenever possible. Otherwise, they must be placed with another member of their tribe. And failing that, they should be placed with “other Indian families”.
This third advantage raised many questions.
Justice Brett Kavanagh said the court would not allow “Congress to say that white parents must give preference to white children in adoption or that Hispanic parents must give preference to Latino children in adoption.”
Judge Amy Coney Barrett said the third preference “simply treats Indian tribes as interchangeable.”
Chief Justice John Roberts asked Ian H. Gershengorn, an attorney for the tribes who intervened to defend the law, whether it “includes the familiar best interests of the child that is applied in family courts across the country.”
Gershengorn responded that “I think I would have to say the answer to that is no,” adding that “Congress decided that the best interest standard was applied in a way that resulted in unreasonable removals.”
Three states — Texas, Louisiana and Indiana — and seven people sued the federal government to challenge the law. They made two main arguments: that Congress had no authority to enact it and that it violated equal protection principles by making distinctions based on race.
Gorsuch questioned both arguments. He said the Constitution gives Congress the power and duty to pass laws that protect the sovereignty of Indian tribes.
“I guess I’m struggling to understand,” he said, “why it gets on the other side of the line when Congress decides it’s important to Native American self-preservation.”
Justice Ketanji Brown Jackson said Congress had the right to address the issue.
“Congress has said there is no resource more important to the continued existence and integrity of Native American tribes than their children,” she said. “They’re constantly imposing rules on children, Native American children, as a matter of tribal integrity, self-governance, existence.”
Gorsuch added that the differences in the law are based on political considerations, not racial ones, because tribes are sovereign entities. “How is this a disgusting racial classification and not a political one?” he asked.
Judge Elena Kagan agreed. “When you regulate tribes,” she said, “you regulate political entities.”
Matthew D. McGill, a lawyer for the people challenging the law, said the children in question did not make a political choice.
“They’re human,” he said. “They are citizens of the United States and the states in which they reside. They are persons within the meaning of the Fifth Amendment. And they have liberty interests that the tribe cannot abrogate simply by unilaterally registering them.”
Kavanagh said the case is about two sets of values clashing. On the one hand, he said, there was “great respect for tribal self-government” and “recognition of the history of oppression and discrimination of tribes and people.”
On the other hand, he said, there is a “fundamental principle that we do not treat people differently because of their race, ethnicity or origin.”
The plaintiffs largely prevailed in a federal trial court and a divided three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans. The full 5th Circuit reheard the case, issuing a mixed ruling that sent both sides to the Supreme Court. The Supreme Court granted review of four appeals, including Haaland v. Brackeen, No. 21-476.
Justice Samuel Alito said the limits of Congress’s power over Indian tribes present a murky problem. “Honestly,” he said, “I don’t know how to analyze this issue.”
