Supreme Court Justice Brett Kavanaugh

Biden administration defends racially discriminatory adoption law at Supreme Court

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A federal law aimed at preventing non-Indian families from adopting Native American children is discriminatory and unconstitutional and should be struck down, parents told the Supreme Court on Nov. 9.

The Biden administration supported the federal law at the court sitting, while a lawyer representing Texas argued the federal law filled with racial-preference standards is an example of overreach that interferes with state adoption policy.

At a three-hour hearing, the justices considered the constitutionality of the Indian Child Welfare Act (ICWA), which was enacted by Congress in 1978 to prevent non-Indian families from adopting Native American children. The statute was a reaction to concerns that Indian children were being removed from their traditional homes and Indian culture and placed in homes that had no connection to their culture. The Bureau of Indian Affairs used to pay states to carry out the adoptions.

The ICWA generally requires that Native children living outside of tribal lands be placed with members of their extended family or tribe; failing that, they are to be placed with outside tribes. If none are available, non-Indian families become eligible to adopt.

The case is Haaland v. Brackeen, court file 21-376, which was consolidated with three other related cases. Petitioner Deb Haaland is U.S. Secretary of the Interior.

Chad and Jennifer Brackeen, a white evangelical Christian couple in Texas, tried to adopt a Native American child. An appellate court upheld the ICWA, finding that Indian families are entitled to enjoy preference in the adoption process.

The Brackeens argue that the ICWA denies them their constitutional right to equal protection.

Although adoption is generally governed by state law and based on the best interests of the child, the federal statute created a separate child-custody system for Indian children, directing state courts to give preference to placement of a child with “(1) a member of the child’s extended family, (2) other members of the Indian child’s tribe, or (3) other Indian families” of any tribe, instead of with non-Indian adoptive parents, the Brackeens stated in a brief (pdf).

The ICWA isn’t working, the Brackeens’ attorney, Matthew D. McGill, told the justices.

Although in 2020 there were over 11,000 Native American children in state foster care, “there are fewer than 2,000 Native American foster homes,” McGill said.

“That means each year hundreds, if not thousands, of Indian children are placed in non-Indian foster homes, and sometimes there they bond with those families. Yet, when those families try to adopt those children, ICWA rears its head for a second time, allowing tribes to play the proverbial ICWA trump card at the eleventh hour,” the lawyer said.

The statute is being used against the Brackeens for a second time as they try to adopt a child identified as Y.R.J., who is now 4-and-a-half years old, as they are being “asked to show good cause to overcome the placement preferences” of the law, instead of demonstrating what is in the best interests of the child, he said.

Because of the ICWA, “not even Y.R.J.’s deep attachment to the Brackeens after being part of their family for four years is sufficient. For both that child and her family, this flouts the promise of equal justice under the law.”

Justice Neil Gorsuch seemed to defend the law, chastising McGill for making “policy” arguments instead of legal arguments.

“I’m struggling to understand your argument,” the justice said. “For the first half of it, I heard policy complaints. It took a while for me to even hear the words equal protection or Article I.”

“The policy arguments might be better addressed across the street,” Gorsuch said, a reference to the nearby U.S. Capitol complex that houses Congress.

Gorsuch suggested that the law may impose a “political classification,” rather than “an invidious racial classification” that might be unconstitutional.

“Tribes … are mentioned in the Constitution” which describes them as “separate sovereigns.”

Chief Justice John Roberts told Deputy U.S. Solicitor General Edwin Kneedler that the federal government was “arguing for special treatment with respect to Indians.”

Justice Sonia Sotomayor defended ICWA.

“If you’re a member of a tribe and the government wants to protect you in a certain way … the government should be unfettered from that,” she told Kneedler.

The law’s treatment of Indian children is “the quintessential part of ICWA that I find hard to overturn.”

Justice Brett Kavanaugh told Kneedler the law seems to treat non-Indian families unfairly.

“I just want you to speak to the concern on the other side, which is … you come in as an adoptive couple, you want to adopt a child, the state court otherwise would say the best interests of the child would be to go with you, and then you’re told no, you’re the wrong race.”

Kneedler suggested there was no racial discrimination at play. The preference for Indian adopters is a determination related to “tribal political citizenship,” he said.

This article by Matthew Vadum appeared Nov. 9, 2022, in The Epoch Times.

Photo: Supreme Court Justice Brett Kavanaugh