After hearing over three hours of testimony, the Supreme Court is closely divided over the constitutionality of the Indian Child Welfare Act (ICWA).
The dispute before the Supreme Court, Haaland v. Brackeen, and three consolidated cases were filed in federal court in Texas, by Texas and seven individuals. Four tribes later joined the case to defend the law.
According to the SCOTUS Blog, the federal district court ruled for the plaintiffs, holding that ICWA is unconstitutional, but a three-judge panel of the U.S. Court of Appeals for the 5th Circuit reversed the ruling.
A ruling by the full 5th Circuit that partly affirmed and partly reversed the panel’s decision prompted four different petitions for Supreme Court review, from the Biden administration, Texas, the individual challengers, and the tribes.
This brings us to today, and based on the justice’s questioning during oral arguments, there is a fair chance that the court could strike down at least part of the law.
The New York Times reports that conservative Justice Neil M. Gorsuch has emerged as the court’s leading proponent of tribal rights, indicating strong support for the law, as did the court’s three liberal members.
Five of the court’s six conservatives asked skeptical questions of the Biden administration and tribal lawyers, with Justice Brett M. Kavanaugh posing the question that he said was at the heart of a tough case, according to the Washington Post.
“On the one hand, the great respect for tribal self-government for the success of Indian tribes with Indian people’s — with recognition of the history of oppression and discrimination against tribes and people,” Kavanaugh said. “On the other hand, the fundamental principle is we don’t treat people differently on account of their race or ethnicity or ancestry, equal justice under law.”
“You can question the policy, you can not question the policy, but the policy is for Congress to make. And Congress understood these children’s placement decisions as integral to the continued thriving of Indian communities,” Justice Elena Kagan said, adding: “That’s not something that we can second-guess, is it?”
Two justices raised questions about standing – the legal right to bring the lawsuit in the first place. Gorsuch was doubtful that the individual plaintiffs had a right to challenge ICWA’s provisions as an equal protection violation.
The individual plaintiffs, he noted, have sued federal officials, but they can’t tell state family-court judges what to do – and therefore the lawsuit cannot provide any relief for them. “I would think that might be the end of it,” he said.
How will the justices rule on the matter remains to be seen, but Wednesday’s argument suggested a result that, although not what the federal government and the tribes might want, also might not be the catastrophic result that they have feared.
