Supreme Court discusses federal law governing adoptions of Native American children

A divided Supreme Court offered measured support for a federal law that gives placement preferences to Native families in adoption matters involving Native children.

The divided Supreme Court provided measured support Wednesday to a federal law giving preference to Native American families in foster care and adoption matters involving Native children.

This issue involves a clash between tribal sovereignty, state rights and racial disparity claims. It was evident in over two hours of oral argument that the justices were affected emotionally by points made by lawyers from both sides.

The issue is whether or not the high court should severely undermine the Indian Child Welfare Act of 1978 (ICWA), which was created to protect Native American rights during state child custody proceedings. Tribal leaders have long supported it as a way to preserve their culture and families.

A group of white families, along with many states, are trying to adopt permanent Native children. They claim they are discriminated against and disadvantaged because of the Constitution’s equal protection guarantee.


After more than three hours, justices debated the legislative limits to a unique relationship between Native Tribes and the federal government. They also discussed the ability of state courts and the “best interests” discretionary determination of children during placement hearings.

Shown are Native Americans protesting Maine schools. (AP Photo/David Sharp, File)

Justice Elena Kagan stated that Congress understood the placement decisions of these children as essential to the continued viability of Indian communities. “And that’s something we cannot second-guess.

Justice Brett Kavanaugh, however, addressed the issue of racial discrimination.

He said that he was addressing his concern by saying, “You would agree that Congress could not give a preference to White families for White children or Black families for Black children, Latino families and Latino children, or Asian families for Asian children” in matters of adoption or foster care.

Jennifer and Chad Brackeen, both from Fort Worth, Texas, are among those who have challenged the law. They had adopted a son in 2016, after his mother, a member the Navajo Nation was unable to care. The tribe wanted to place the boy with tribal members from other states.

Although the Brackeens won custody of A.L.M, they now want to adopt A.R.J., the child’s half-sister.

Chad Brackeen stated to Fox News Digital that it has been three and a quarter years since the court proceedings began and that they have not been able finalize the adoption. “Ultimately, these siblings belong together.”

However, more than three-quarters of the 574 federally recognised American tribes informed the Supreme Court in amicus briefs that it has been on the books for 44+ years and is still working.

“The Supreme Court precedent is that Indian tribes can be political groups of people, but they are not racial group of people,” stated Chrissi Ross Nimmo (deputy attorney general for Cherokee Nation). “Tribes decide citizenship…just like countries.”

View from outside the Supreme Court (Joshua Comins/Fox News).


Many tribal leaders warn of a greater loss of political sovereignty if ICWA is dissolved or weakened in areas such as housing and education, all of which are covered by federal laws.

Louisiana, Indiana, and Texas have also challenged the federal law as it is overstepping their authority in state child custody matters.

During arguments, the court tried to reconcile parallel claims about whether federal law discriminates and whether federal government has plenary (or unqualified) authority over relations with Native tribes.

“Congress has allowed tribes to exercise control over environmental regulations that have indirect consequences off-reservation. Justice Neil Gorsuch stated that this would happen if the ICWA law were struck down. “We have laws that guarantee Native Americans access to sacred places off-reservation, and religious freedoms off-reservation. It would seem that this would be the case.

Gorsuch said, “We’d be very busy for many years trying to settle things… if that’s the [judicial] line we intend to draw… very very busy.”

Justice Samuel Alito was concerned about the scope of congressional authority.

“Could Congress go farther than it has in ICWA to say that an Indian child cannot be adopted by a non Indian couple under any circumstances?” He asked. “If there are limitations, it’s difficult for me to see the limits. This is where I need your help.

Justice Amy Coney Barrett, who has two adopted children from Haiti with her husband Jesse, questioned a provision of ICWA that gives preference for Native foster and adoptive parents, even if they’re not part of the same tribe.

On April 23, 2021, Supreme Court members pose together for a group photograph. (Erin Schaff-Pool/Getty Images)

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Alito, Kavanaugh, and Chief Justice John Roberts also interrogated the lawyer for Justice Department regarding that provision. Roberts and Jane have two children together.

The cases consolidated are Haaland (v. Brackeen), Cherokee Nation (v. Brackeen) (21-376), Texas v. Haaland (23-377), and Brackeen. In the next few months, a ruling is expected.

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