The U.S. Supreme Court on Thursday rejected a major challenge to the Indian Child Welfare Act, a 1978 federal law that established standards for state family court proceedings involving Native American children.
In a notable concurrence, Justice Neil M. Gorsuch detailed his views about why the law was necessary to respond to the nation鈥檚 鈥渄evastating鈥� policies of removal of such children from their families, beginning with federal Indian boarding schools in the 19th century and later with family court proceedings in the mid-20th century favoring white adoptive parents.
While Indian education initially meant day schools on reservations, sometimes taught by missionaries or the wives of U.S. Army officers, 鈥渢he federal government had darker designs,鈥� Gorsuch wrote in his concurrence in .
鈥淏y the late 1870s, [the federal government鈥檚] goals turned toward destroying tribal identity and assimilating Indians into broader society,鈥� Gorsuch wrote, and 鈥渢hus began Indian boarding schools.鈥�
The first Indian boarding school opened in 1979 in Carlisle, Pa., becoming the model for 408 similar federal institutions nationwide, Gorsuch observed. Federal officials used economic coercion and sometimes abduction to force Native American children into such schools.
鈥淯pon the children鈥檚 arrival, the boarding schools would often seek to strip them of nearly every aspect of their identity,鈥� Gorsuch wrote. 鈥淭he schools would take away their Indian names and give them English ones. The schools would cut their hair鈥攁 point of shame in many native communities鈥攁nd confiscate their traditional clothes.鈥�
Tribes were required to shoulder most of the costs of the schools, and students at least as young as 12 were often required to work on the grounds or be sent out to live with white families and perform household and farm chores, Gorsuch said.
A 1928 report by the Brookings Institution found the schools 鈥済rossly inadequate鈥� and recommended that the federal government move away from boarding schools in favor of sending Native American children to tribal day schools or nearby public schools, he noted.
鈥淭hat transition would be slow to materialize,鈥� Gorsuch said, and as late as 1971, more than 17 percent of the Indian school-age population was still in the boarding schools. There are a small number of boarding schools, as well as schools on reservations operated by the U.S. Department of the Interior鈥檚 Bureau of Indian Education.
Gorsuch went on to describe how the transition away from boarding schools eventually lead to the Indian Child Welfare Act. Some states promoted the adoption of Indian children by non-Native American families. By the 1960s and 70s, between 25 and 35 percent of such children were separated from their families, and often removed from their communities, by questionable family court proceedings, he said.
The federal statute created procedural and substantive safeguards requiring notice of any involuntary removal proceeding to the Indian child鈥檚 parent and tribe. And the law gives placement preference to a member of the child鈥檚 extended family, then other members of his or her tribe, and then other Indian families.
鈥楥omplicated issues鈥� in a multi-pronged challenge to the 1978 law
The state of Texas, along with four non-Native American families engaged in adoption cases covered by the law, challenged ICWA on multiple grounds. Those included that Congress lacked the constitutional authority to enact the law; that the statute infringes on a traditional area of state governance鈥攆amily law; and that the law impermissibly employs racial classifications.
Justice Amy Coney Barrett, writing for the 7-2 majority, explained that 鈥渢his case is about children who are among the most vulnerable: those in the child welfare system.鈥�
But 鈥渢he issues are complicated,鈥� she said, and 鈥渢he bottom line is that we reject all of the petitioners鈥� challenges to the statute, some on the merits and others for lack of standing.鈥�
The majority declined to overturn a lower federal court鈥檚 ruling that ICWA is consistent with Congress鈥檚 authority over Indian affairs under Article I of the Constitution. The majority rejected the challengers鈥� claims that the federal law 鈥渃ommandeered鈥� the states to perform certain family law functions.
And the court rejected the equal-protection challenge, which contends that the law favors Indian families over non-native families on the basis of race. Barrett said none of the challengers had proper legal standing to bring that claim.
Barrett鈥檚 opinion was joined by Gorsuch as well as Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh, and Ketanji Brown Jackson.
Kavanaugh wrote a concurrence to emphasize that he considers the equal-protection issue to be serious because under ICWA, a child in foster care or adoption proceedings, as well as prospective foster or adoptive parents, may be denied a particular placement or opportunity because of their race.
鈥淭hose scenarios raise significant questions under bedrock equal protection principles and this court鈥檚 precedents,鈥� he said, adding that the issue may one day return to the court by parties with proper standing.
Justice Clarence Thomas wrote a lengthy dissent arguing that Congress exceeded its authority over Indian affairs when it passed ICWA.
鈥淭oday, Indians are citizens of the United States; the vast majority of them do not live on any reservation or Indian lands, but live (as most citizens) on lands that are wholly within a state鈥檚 jurisdiction,鈥� Thomas said. 鈥淭hus, one might expect that when a child custody issue regarding an Indian child arises in a state court, that court would apply the same laws that it would for any other citizen.鈥�
Justice Samuel A. Alito Jr., in a separate dissent, said, 鈥淲hatever authority Congress possesses in the area of Indian affairs, it does not have the power to sacrifice the best interests of vulnerable children to promote the interests of tribes in maintaining membership.鈥�
Praise for ruling from a president who had voted for it
Kathryn E. Fort, the director of the Indian Law Clinic at Michigan State University鈥檚 College of Law, said the decision is 鈥渁 resounding victory for Indian child welfare, for native families, and for principle of federal Indian law.鈥�
Fort, who helped represent several tribes that had intervened in the case to support ICWA, praised Gorsuch for his discussion of Indian boarding schools, especially for his multiple citations to a .
鈥淭hat report brought back a consciousness of this issue and raised the profile of the discussion.鈥�
Amanda L. White Eagle, a clinical fellow at New York University law school who oversees the NYU/Yale Sovereignty Project dealing with Native American legal issues, said she was pleased that Gorsuch had also cited studies going back years 鈥渢hat exposed the inadequacies of Indian boarding schools.鈥�
鈥淏y proving this capacious view of our histories, he was really able to show why this was important and why this led to the development鈥� of the 1978 law, said White Eagle, who co-wrote a friend-of-the-court brief for two historical groups that focused on the boarding school legacy (and was itself cited by Gorsuch).
鈥淚t was quite a concurrence,鈥� she said.
President Joe Biden praised the ruling in a statement, noting that he had supported ICWA as a U.S. senator.
鈥淥ur nation鈥檚 painful history looms large over today鈥檚 decision,鈥� Biden said. 鈥淚n the not-so-distant past, Native children were stolen from the arms of the people who loved them. They were sent to boarding schools or to be raised by non-Indian families鈥攁ll with the aim of erasing who they are as Native people and tribal citizens. These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations.鈥�
Gorsuch鈥檚 concurrence was joined in part (including his section on Indian boarding schools) by Sotomayor and Jackson.
In his conclusion, speaking only for himself, Gorsuch said, 鈥淥ften, Native American Tribes have come to this court seeking justice only to leave with bowed heads and empty hands. But that is not because this court has no justice to offer them.鈥�
In adopting ICWA, he said, Congress exercised its 鈥渓awful authority鈥� over Indian affairs 鈥渢o secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.鈥�
