Gorsuch and liberal justices sympathetic to Native American preference in decades-old welfare law


Neil Gorsuch
Justice Neil Gorsuch addresses the audience during his talk at the University of Kentucky, Thursday, Sept. 21, 2017, in Lexington, Ky. (AP Photo/Timothy D. Easley)

Gorsuch and liberal justices sympathetic to Native American preference in decades-old welfare law

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The Supreme Court on Wednesday took up a challenge over the legality of a 44-year-old federal law that gives preferences to Native Americans and tribal members in the adoption or foster placements of Native American children, revealing a potential alignment between Justice Neil Gorsuch and the three liberal justices.

While Gorsuch is among the court’s six Republican-appointed justices, he has maintained a record of joining the court’s Democratic-appointed members on Native American issues. Wednesday’s arguments signaled his willingness to uphold the precedent being challenged by a group of non-Native American adoptive families and the GOP-led state of Texas against the Indian Child Welfare Act of 1978 after lower courts ruled parts of the law unconstitutional.


From the 1860s to the 1960s, data indicate a percentage of Native American children in the United States were taken away from their biological parents in order to be sent to boarding schools or nonindigenous families as a method of forced assimilation. In 1978, Congress sought to end such practices with the passage of the ICWA, establishing strict standards for removing Native children from their biological parents and making tribal families first in priority for placements and adoptions.

“I guess I’m struggling to understand why this falls on the other side of the line when Congress makes the judgment that this is essential to preservation of Indian tribes,” Gorsuch told a lawyer challenging the law.

Challengers to the decades-old law argued that some of its preferences racially discriminate against non-Native Americans in violation of the Constitution’s equal protection clause under the Fifth Amendment. “ICWA violates the Constitution’s equal-protection guarantee by categorizing children based on genetics and ancestry and potential adoptive parents based on their race,” Texas argued in a court filing.

The American Civil Liberties Union, President Joe Biden‘s administration, and Native American tribes have argued in response that the law is not based on race because U.S. law provides such tribes with special status, their own legal jurisdictions, and court systems. Tribes further allege that overturning the ICWA could jeopardize some of those long-standing provisions under federal law.

Gorsuch pushed against the challengers Wednesday, asking, “How is this an insidious racial classification rather than a political classification?”

Echoing Gorsuch, Justice Elena Kagan asked, “This is a matter for Congress, isn’t it?”

“It’s not a matter for the courts to decide whether it does these terrible things or whether it doesn’t do any of them. Isn’t that really Congress’s judgment that we’re supposed to respect?” Kagan added.

Gorsuch’s apparent alignment with Justices Kagan, Sonia Sotomayor, and Ketanji Brown Jackson would only make four votes out of the nine-member court, though the rest of the high court’s conservative bloc appeared wary of striking down the entire law.

Conservative Justice Samuel Alito questioned whether Congress could have gone further than it has previously, asking if it could add that an “Indian child may not be adopted by a non-Indian couple under any circumstances.” Edwin Kneedler, an attorney for the Biden administration who defended the 1978 law, told Alito he thought that would be “difficult to defend.”

Ben Kappelman, a partner at law firm Dorsey & Whitney who has a represented a Minnesota Indian tribe pro bono in child welfare proceedings, told the Washington Examiner that Gorsuch appeared to suggest that any changes to ICWA should be handled by Congress.

“However, the lack of much discussion about the argument that ICWA creates an impermissible racial classification suggests that the court is not ready to strike down the entire structure of the unique relationship between the federal government and Native American tribes,” Kappelman said of full court’s response to the arguments presented Wednesday.

Families challenging the ICWA include Chad and Jennifer Brackeen, two Texas parents who adopted one Navajo Nation child and are seeking to adopt his biological sister. Their complaint stems from the tribe seeking Navajo placements for the children.

Both parties appealed to the Supreme Court after the 5th U.S. Circuit Court of Appeals last year issued a split decision that saw judges divided on key measures of the law. A district court judge previously ruled the law unconstitutional.

The high court has been narrowly divided in two recent landmark cases on Native American issues. Justices expanded tribal authority in Oklahoma in a 5-4 decision in the 2020 McGirt v. Oklahoma case, authored by Gorsuch. However, a separate case that sought to limit the impact of the 2020 ruling was decided this summer and allowed the court to reverse part of McGirt by allowing state power over tribes in certain instances.


During the time between the two rulings, Democratic-appointed Justice Ruth Bader Ginsburg, who sided with the tribes in McGirt, died and was replaced by the conservative Justice Amy Coney Barrett. She made the deciding vote against the tribes in the second case, while Gorsuch joined the three liberals in dissent.

The case heard on Wednesday was Haaland v. Brackeen and was a consolidation of three other similar cases. A decision from the justices is expected by June.

© 2022 Washington Examiner

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