WASHINGTON – The Supreme Court on Thursday let stand a 1978 law intended to end the mass removal of Native American children from their homes, declining to assess whether the law discriminated against white families by giving preference to Native families for the adoption of Native children.
Justice Amy Coney Barrett wrote the decision for a 7-2 majority. Justices Clarence Thomas and Samuel Alito dissented.
Before Congress approved the Indian Child Welfare Act, hundreds of thousands of Native American children were removed from their homes by adoption agencies and placed with non-Native families or in boarding schools. Among other provisions, the law gave preference to Native families when Native children were up for adoption.
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But the law was challenged by non-Native families who had sought to adopt Native American children and who said that preference was a racial one that violated the 14th Amendment. Leaders of several of the nation’s best-known tribes, joined by the Biden administration, argued the law’s requirements were based not on race but rather on the fact that Native American tribes are sovereign entities.
The majority said that the parties in the case lacked standing to bring the equal protection claim.
The appeal follows a deeply fractured opinion from the U.S. Court of Appeals for the 5th Circuit, which split evenly on several of the law’s provisions. The result upheld a federal district court’s determination that some provisions of the law are unconstitutional.
The Indian Child Welfare Act has in the past divided the Supreme Court in unpredictable ways. In 2013, a 5-4 majority sided with a 3-year-old girl’s non-Native adoptive parents over a claim made by her biological father, who was a member of the Cherokee Nation and had objected to the adoption after the fact. In an opinion written by Associate Justice Samuel Alito, the court ruled that a noncustodial parent could not invoke the law.
