In oral arguments, Supreme Court justices seemed inclined to reconsider parts of a federal law that prioritizes foster or adoptive parents based on tribal status. The law intends to rectify past government abuses.
The law is being challenged by seven individuals and three states, led by Texas. The plaintiffs contend the law requires state officials to put aside the traditional standard of doing what is best for the child, and relies on racial discrimination in ways the Constitution does not allow.
But conservative Justice Neil M. Gorsuch, who has been a strong supporter of Indian rights in his time on the Supreme Court, joined the court’s three liberals in vigorously defending Congress’s prerogative to pass the law, as well as the idea that judicial humility required leaving it in place.“You can question the policy, you can not question the policy, but the policy is for Congress to make.
Kneedler said such a position would be more difficult to defend than the ICWA, because college admissions are less related to preservation of tribes and “bumps up against” the interests of others. When custody and adoption proceedings are in state rather than tribal courts, the ICWA sets up a hierarchy of placement for Indian children, preferring first the child’s extended family, then members of the child’s tribe, then another Indian family even if from a different tribe and then a non-Indian home.Two members of the court, Roberts and Justice Amy Coney Barrett, are adoptive parents.
The case arrived at the Supreme Court from the U.S. Court of Appeals for the 5th Circuit, where part of the law was upheld and part was held unconstitutional. The complicated rulingGorsuch and the liberal justices seemed convinced Congress had authority to implement the law, which Gershengorn said was studied for four years and meant to rectify a past in which
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