(ThePatriotWire)- The Supreme Court is hearing a case over federal requirements that have been in place for decades that give Native Americans and tribal members preference in foster care placements or adoptions of children who are Native Americans.
According to a Reuters report, the justices seemed divided on Wednesday over where they stand. Oral arguments lasted roughly three hours on Wednesday for the case, which is being challenged by a group of adoptive families who aren’t Native Americans as well as the state of Texas.
Lower courts declared part of the law in question unconstitutional. The Biden administration, as well as several Native American tribes, are defending this particular law.
The law in question is called the Indian Child Welfare Act of 1978. While Reuters said that the high court justices didn’t seem like they were completely willing to strike down the entire law, they did ask questions that showed they were wondering whether Congress overstepped the authority it has when it passed the law originally.
In addition, the justices seemed to be slit about whether parts of the preferences that the law gives discriminate racially against people who aren’t Native Americans. That is what the plaintiffs are contending in their challenge.
According to the law, “preference” is given in adoptions to one of the child’s extended family members, other members of the tribe of “other Indian families.”
Some of the conservative Supreme Court justices raised various concerns about that third preference, which could include members of a separate Native American tribe.
Justice Amy Coney Barrett commented on that part by saying:
“This is just treating Indian tribes as fungible.”
And fellow conservative Justice Brett Kavanaugh said it wouldn’t be permissible for “Congress to say that white parents should get preference for white children in adoption, or that Latino parents should get preference for Latino children.”
At the same time, all three liberal justices as well as conservative Justice Neil Gorsuch said these preferences are viewed by Congress as necessary to protect these sovereign tribes from going extinct.
Gorsuch asked a lawyer for the challengers at one point:
“How is this an insidious racial classification rather than a political classification?”
Justice Elena Kagan, a liberal, said:
“Congress is very clear in this statute that it thinks that this statute is critical to the continuing existence of the tribe as a political entity.”
When the Act was originally passed, it was seeking to reinforce the connections among tribes by putting in place federal standards for the placement or removal of children through adoption or foster care.
Court papers at the time show that 25% to 35% of all Native American children were being removed in states that had large populations of Native Americans. It was a crisis at the time, according to Congress, which was seeking to address the unwarranted removal of these children from their families to be placed with families who weren’t Native American.
The challenge before the Supreme Court was brought by Jennifer and Chad Brackeen, a Texas couple who adopted a child in 2018 whose mother is a member of the Navajo Nation. The couple wants to adopt the boy’s half-sister, but they’re in a legal battle with the tribe in their attempts to do so.