Posted on June 16, 2023

Supreme Court Preserves Law That Aims to Keep Native American Children With Tribal Families

Mark Sherman, Associated Press, June 15, 2023

The Supreme Court on Thursday preserved the system that gives preference to Native American families in foster care and adoption proceedings of Native children, rejecting a broad attack from some Republican-led states and white families who argued it is based on race.

The court left in place the 1978 Indian Child Welfare Act, which was enacted to address concerns that Native children were being separated from their families and, too frequently, placed in non-Native homes.

Tribal leaders have backed the law as a means of preserving their families, traditions and cultures and had warned that a broad ruling against the tribes could have undermined their ability to govern themselves.


Justices Clarence Thomas and Samuel Alito dissented, each writing that Congress lacks the authority to interfere with foster care placements and adoptions, typically the province of the states. The decision, Alito wrote, “disserves the rights and interests of these children.”

But Justice Neil Gorsuch, a Colorado native who has emerged as a champion of Native rights since joining the court in 2017, wrote in a separate opinion that the decision “safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties.”

The leaders of tribes involved in the case called the outcome a major victory for tribes and Native children.


Congress passed the law in response to the alarming rate at which Native American and Alaska Native children were taken from their homes by public and private agencies.


Three white families, the state of Texas and a small number of other states claimed the law is unconstitutional under the equal protection clause because it was based on race. They also contended it puts the interests of tribes ahead of children and improperly allows the federal government too much power over adoptions and foster placements, areas that typically are under state control.


At last fall’s arguments, several conservative justices expressed concern about at least one aspect of the law that gives preference to Native parents, even if they are of a different tribe than the child they are seeking to adopt or foster.

Among them was Justice Brett Kavanaugh, who was in the majority Thursday in favor of the tribes. But Kavanaugh injected a cautionary note in a separate opinion focused on the preferences for Native foster and adoptive parents.

“In my view, the equal protection issue is serious,” Kavanaugh wrote, commenting that the race of prospective parents and children could be used to reject a foster placement or adoption, “even if the placement is otherwise determined to be in the child’s best interests.”