Tribal adoption and foster care law upheld at the Supreme Court

The Indian Child Welfare Act survived a closely watched challenge in a lopsided 7-2 vote on Thursday. Gorsuch and Thomas both challenged the court's history — but reached the opposite results.

At the end of the day, the result in Haaland v. Brackeen — the case over the Indian Child Welfare Act (ICWA) — was not close at the U.S. Supreme Court.

The 1978 law sets forth certain procedures to be followed in child custody proceedings involving either a member of an Indian tribe or a person eligible for tribal membership who also is the biological child of a member of a tribe — including requirements that give preference to Indian caretakers, where available.

The fate of ICWA was in serious doubt, given that a conservative appeals court had struck down much of the law as unconstitutional on various grounds.

On Thursday, though, a lopsided 7-2 Supreme Court tossed out much of the ruling from the U.S. Court of Appeals for the Fifth Circuit — reversing or vacating all of the Fifth Circuit’s decision striking down the law.

The only part of the appeals court’s ruling that the Supreme Court affirmed in the opinion for the court by Justice Amy Coney Barrett was the underlying question of whether Congress had authority to pass ICWA at all under Article I of the U.S. Constitution, which the Fifth Circuit found it did and which, as Barrett wrote, “[w]e … decline to disturb.“

It was, ultimately, that decision that formed the basis for much of the 133 pages of opinions from five justices at the Supreme Court — including a pair of strangely convergent yet dueling opinions from Justices Neil Gorsuch and Clarence Thomas.

The opinions from Gorsuch, agreeing with Thursday’s result, and Thomas, dissenting, traversed much of the same ground — even agreeing on some fundamental issues challenging the court’s precedents in dealing with tribal issues — but they never so much as acknowledged the existence of the other, let alone engaged with one another’s reasoning.

And then, they reached the opposite result in Thursday’s case.

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The case before them

ICWA was being challenged by would-be parents seeking to adopt or foster children who could be covered by ICWA, the biological parent of a child covered by ICWA, and the state of Texas.

Barrett, writing for the court, acknowledged the complex nature of the cases, while nonetheless stating that the court “reject[ed] all of petitioners’ challenges to the statute, some on the merits and others for lack of standing” — a caveat that certainly left open the possibility of future litigation, which some justices anticipated and others outright called for.

As noted above, the challenge to congressional authority to pass the law was rejected, as were arguments from the challengers that several parts of the law violated the Tenth Amendment by commandeering the states through ICWA’s various requirements. Additionally, the court found that neither the individual plaintiffs nor Texas had standing to raise either the equal protection claims in the litigation or the nondelegation arguments they made.

Barrett’s decision for the court was joined in full by all six other justices in the majority — all three Democratic appointees, both of her fellow Trump appointees, and Chief Justice John Roberts.

Summarizing the Article I authority dispute that erupted in the concurring and dissenting opinions, Barrett wrote of the court’s convoluted jurisprudence in the area, “We have often sustained Indian legislation without specifying the source of Congress’s power, and we have insisted that Congress’s power has limits without saying what they are.”

Echoing points made throughout her decision, she criticized the challengers — in a rather direct manner for a Supreme Court decision — for not acknowledging the court’s precedents and instead “fram[ing] their arguments as if the slate were clean.” To that, she wrote, “More than two centuries in, it is anything but.

“If there are arguments that ICWA exceeds Congress’s authority as our precedent stands today, petitioners do not make them. We therefore decline to disturb the Fifth Circuit’s conclusion that ICWA is consistent with Article I,” Barrett concluded for the court.

The decision went on to analyze the anti-commandeering arguments, holding that they all failed, before holding that the challengers lacked standing to bring the equal protection or nondelegation claims.

Only Thomas and Justice Sam Alito dissented. Each wrote separately, with Alito’s dissent focused on the fact that “governance of family relations” is a “core state function[]” that ICWA intrudes on.

Two converging divergent views of law and history

Thomas’s dissent was the longest opinion in the case, coming in at 40 pages.

In large part, Thomas detailed what he saw as the relevant parts of American history, critiqued the court’s tribal cases — and their focus on an alleged “plenary power” that Congress has over “Indian affairs” — and disagreed with what he viewed as the majority’s misguided attempt to find a way to justify ICWA as fitting within Congress’s powers and incorrect ruling that the challenges to that authority failed:

Like so many cases before it, the majority’s opinion lurches from one constitutional hook to another, not quite hanging the idea of a plenary power on any of them, while insisting that the plenary power is not absolute.

The plenary power claim, Thomas wrote, is “a power in search of a constitutional basis.” In the absence of such a plenary power, he concluded:

Properly understood, the Constitution’s enumerated powers cannot support ICWA. Not one of those powers, as originally understood, comes anywhere close to including the child custody proceedings of U.S. citizens living within the sole jurisdiction of States.

Somewhat remarkably, Thomas’s dissent read at times like a funhouse-mirror reflection of Gorsuch’s concurring opinion, the second-longest opinion in the case at 38 pages.

Gorsuch’s concurrence similarly detailed his view of the relevant parts of American history and critiqued the court’s tribal cases — including the alleged “plenary power” claims.

In a part of his opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, Gorsuch — who has emerged as the court’s strongest tribal rights advocate, following his decade on the federal appeals court that includes much tribal land — wrote a powerful concurrence detailing some aspects of the nation’s historical mistreatment of native people. Focusing on the calculated, multi-phase effort to separate Indian families that preceded ICWA’s passage, he wrote:

Later, in a section of the concurrence authored only for himself, Gorsuch made comments similar to those later echoed by Thomas in dissent. Gorsuch wrote of “the Court’s atextual and ahistorical plenary-power move” regarding tribes, noting as well that decisions referencing this plenary power at the federal level “had predictable downstream effects on the relationship between States and Tribes.”

By connecting the court’s precedents to the history he’d just recounted, Gorsuch noted, “It is no coincidence either that this Court’s plenary-power jurisprudence emerged in the same era as Indian boarding schools and other assimilationist policies.”

For Thomas, however, there was no such conjoined consideration. His review resulted in looking at the case — and ICWA — from the opposite perspective. For Thomas, ICWA cannot be justified under limited federal authority because, historically, Congress had no authority to legislate so broadly on tribal “affairs” — finding a far more limited view of “commerce” under the Indian Commerce Clause than the majority did.

For Gorsuch — in a later part of his concurrence again joined by Sotomayor and Jackson — once the history is reviewed, “[I]t is easy to see why ICWA must stand.”

Because tribes “remain independent sovereigns responsible for governing their own affairs,” including “domestic law arrangements,” ICWA “recognized” both the essential nature of Indian children to Indian tribes — and “the mass-removal of Indian children by States and other outsiders” that put those tribes’ futures in jeopardy. “[A]t its core, ICWA restricts how non-Indians (States and private individuals) may engage with Indians,” Gorsuch concluded. “And, as we have seen, that falls in the heartland of Congress’s constitutional authority.”

Underlying their unspoken dispute could be a question of the ongoing validity of that tribal sovereignty that Gorsuch discussed.

Toward the end of his concurrence, Gorsuch — for himself — urged the court, “in time” to go even further in protecting tribal sovereignty. Thomas, though, signaled he would potentially prefer the court to go in the other direction, at one point noting that he was only “assum[ing] that some tribes still enjoy the same sort of pre-existing sovereignty and autonomy as tribes at the Founding” in his dissent “[f]or today’s purposes.”

Between the two of them, the two justices wrote 78 pages coming close together only to reach the opposite conclusion — and they did so without so much as a reference to the other’s opinion.

A final note on “the equal protection issue”

Notably, Justice Brett Kavanaugh’s concurrence was the only opinion that specifically addressed the merits of the equal protection claim directly.

While agreeing with the majority that there was no standing here in these cases, Kavanaugh wrote a brief two-page concurrence to assert that “the equal protection issue is serious” — asserting that the law could result in different placement for a child “because of the child’s race“ or different treatment of a would-be foster or adoptive parent “because of the prospective parent’s race.”

It was only a parenthetical note from Gorsuch that signaled the problem with this argument, a reference to “the bedrock principle that Indian status is a ‘political rather than racial’ classification.”

Gorsuch’s parenthetical did not mention Kavanaugh’s concurrence.