On Wednesday, the Supreme Court will hold one of its longest hearings of the current term, and the time probably will be needed: four separate cases, being heard together, will draw the Justices into deep controversy over a lengthy list of fundamental constitutional questions. All of those issues come down to this: who will raise children born to American Indian parents, within a tribe or outside of it, and who decides that?
The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the leading case, on C-Span TV at this link: cspan.org/supremecourt If you want to listen to it later, take the same steps on the Court’s homepage, but go down the page to the title of the case and open that link.
Wednesday hearing: Haaland, U.S. Secretary of the Interior v. Brackeen That is the leading case; three others have been combined with it for a scheduled hearing of one hour and 40 minutes. It will begin at 10 a.m. Given the number of issues, it may well run longer than the allotted time.
Background: Government in America has been dealing with Native Americans since before the Constitution was written in 1787. In 1775, the Continental Congress – the national government under the Articles of Confederation – provided money for educating Indian children at Dartmouth College, which had been founded for that purpose six years earlier.
In the first treaty between the United States and an Indian tribe, negotiated during the Revolutionary War, the national government assumed responsibility for Indian children, women and older men while tribal men were engaged in the war of independence from England.
That relationship has always been one in which, while tribes were treated as sovereign nations, the federal government looked after their interests – including, for example, protecting against the seizure of tribal lands. Those lands were held “in trust” by the government, a legal responsibility first formally recognized by the Supreme Court in 1832; it also was spelled out in various treaties with Indian tribes.
The relationship, though, has often been deeply troubled, as in the mid-20th Century, when the federal government mounted a broad effort to “assimilate” tribal members in larger society, causing deep fears not only of breaking up tribes but of destroying Indians’ culture, their way of life.
The four cases being heard tomorrow stem from the same assimilation idea, when congressional hearings in the 1970s explored the break-up of a large number of Indian families, with more than one out of every four children removed from their families and placed with non-Indian families or in military-style boarding schools.
Congress reacted in 1978, passing the Indian Child Welfare Act. Basically, that law took over almost all of the child adoption system for Indian children in the states where tribes existed, displacing state or local laws and rules as they applied to those children. It set minimum standards that had to be followed on when a child could be removed from an Indian family, and gave preference in placing children to other Indian families. The law does not govern what the tribes’ own courts may do, but regulates state court courts and agencies as they make adoption and foster care decisions.
Overall, the policy was designed to keep children who are identified as Indian within the Indian community. To achieve that, the first preference is to place a child given up by parents with a member of the child’s extended family, the second is other families within the tribe, and the third is other Indian families. That order applies either to adoption or to foster care.
When a child is given up by a parent or both parents, state officials must notify the tribe and allow it to take part in the placement process. State courts must keep detailed records on how each placement was made.
In the federal appeals court ruling that is now before the Justices, the third preference for adoption and foster care was ruled unconstitutional as discrimination based on race; the other two were upheld. However, that ruling did not find the mere identification of an Indian child in the process to be a form of racial classification, saying it was based on the federal government’s political obligation to care for the welfare of Indian children and families.
That decision went both ways on whether the law unconstitutionally took over state adoption and foster care cases, upholding some provisions and nullifying others. For example, it allowed the law to be applied to state courts, but not to state government agencies. It ruled against the record-keeping duties.
On a broader constitutional point, the appeals court ruled that Congress had “plenary power” – almost unrestricted – to pass the 1978 law. That result was reached by a 9-to-7 vote.
This constitutional controversy began in the fall of 2017, when the state of Texas filed a wide-ranging lawsuit in federal court in Fort Worth, Texas. Also joining in were seven Texas parents – six non-Indians seeking to adopt or become foster parents to Indian children and an Indian mother who wanted her child placed with a non-Indian family. Soon, the states of Indiana and Louisiana entered the case to support the constitutional challenge.
That is the lawsuit that, five years later, is just now unfolding in the Supreme Court. It is truly a massive case: the main appeals court ruling – with 16 judges splintering widely in eight separate opinions — runs to 343 pages; it took six pages just to summarize. All told, the Supreme Court has before it an array of lower court rulings totaling 579 pages, plus a hefty stack of legal briefs on all sides of the issues. The Indian community nationwide is heavily involved: one of the briefs is filed on behalf of 497 tribes and 62 tribal organizations.
What makes the case more challenging than its sheer size is that the constitutional provisions at stake govern virtually the entire relationship between the national government and America’s Indians. At stake is the scope of Congress’s powers in general under Article I, the meaning of the Article I clause that assigns Congress authority to “regulate commerce with the Indian tribes,” the guarantees of legal equality for the races under the Fifth and Fourteenth Amendments, and the limits imposed by the Tenth Amendment on federal power toward state governments.
Tomorrow, four lawyers will appear: one for the state of Texas, one for the Texas parents, one for the Biden Administration’s Interior Department (the main agency dealing with Indian policy), and one for four Indian tribes, led by the Cherokee Nation. The cases are assigned a total of one hour and 40 minutes, but the hearing could easily run twice that long. (That is unusually long by modern standards, but no comparison to how the Court in its early years spent days hearing just one case – a very important constitutional hearing in 1819, for example, ran for nine days.)
Here are the questions the Court has agreed to decide on the constitutionality of the Indian Child Welfare Act:
- As a general proposition, does the Constitution give Congress nearly unrestricted power to enact legislation as it sees fit, or are its powers limited by the structure of America’s system of national and state governments?
- Does the power given to Congress by Article I’s “Indian Commerce Clause” give it authority only to regulate Indian lands or, at most, Indian tribes, but no power over Indians as individuals – including children?
- Does it violate the Tenth Amendment for Congress, in the 1978 law, to have displaced the fundamental authority of state governments to determine adoption and foster care for Indian children – traditionally, a matter for the states? Does the law unconstitutionally require state agencies to implement a federal law?
- Did Congress in 1978 unconstitutionally authorize the use of race to enact a sweeping law for Indians that applies to no other ethnic group?
- Does the 1978 law unconstitutionally give a racial preference in making it a priority for Indian families to adopt or provide foster care for Indian children?
- Does the 1978 law unconstitutionally transfer Congress’s power to legislate by giving individual tribes the authority to change the child-placement preferences spelled out in that law?
If the Court actually does seek to answer all of those questions, it must reach back to foundational principles in the Constitution, as well as examine literally more than two centuries of history of Indian law. The Court, however, does have the option of avoiding some of those questions, because the Biden Administration is challenging the right of Texas and the Texas parents to pursue some of their claims – specifically, the placement preferences. (By the way: whether they may sue on this point is itself a constitutional question, because Article III creating the federal courts limits their authority: they can only decide genuine controversies, not abstract legal questions.)
Because that right-to-sue issue is an issue that the Court must resolve before it has authority to decide the placement preference dispute, it will be answered. The Biden Administration, though, will probably have difficulty winning on that question, since the basic formula is that, if any one party has a right to sue on a question, that is enough to keep the issue alive. Moreover, the fact that the Court, in agreeing to review these four cases, accepted every question posed on all sides is a clear sign of an eagerness to rule broadly.
Significance: The Supreme Court has long been fascinated by American law as it applies to Indians, their tribal rights and their relationships with governments at all levels. But it is probably true that, in the 230-plus years that the Court has been exploring the meaning of the Constitution’s “Indian Commerce Clause,” there seldom – if ever — has been a more important task than deciding these four cases.
With its six-Justice majority of conservative Justices taking pride in deep explorations of the Constitution’s meaning at the time of the Founding in the late 18th Century (interpretation based on “originalism”), history could be a useful guide to how these cases may come out. Maybe the most impressive brief filed on the history of Indian law is by a prize-winning Stanford historian, Gregory Ablavsky, who interprets the Indian Commerce Clause broadly.
Texas, the state whose attorney general is one of the nation’s most energetic challengers of national policy, on a wide array of issues, has been diligently pursuing this controversy for five years and, at every step, has sought to make the challenge as sweeping as possible.
Although there are many issues at stake, none is more important to Texas than the racial question. One of the state’s filings in the Court makes this blunt statement: “No government may categorize children or their potential parents based on their race.” The authority the state cites for that statement is a 2007 decision by the Court in a school desegregation case, in which Chief Justice John Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Texas is also relying on an earlier decision by the Court interpreting the Indian Child Welfare Act, a 2013 ruling in which, by a 5-to-4 vote, the Court declared that an Indian father of a baby girl could not use the 1978 law to challenge adoption by a non-Indian couple because the child had never lived with her father.
Justice Samuel A. Alito, Jr., who wrote the majority opinion, questioned whether the law limited too greatly the opportunity of Indian children to be raised by devoted parents. Justice Clarence Thomas, in a separate opinion for himself only, argued that Congress lacked authority to enact that law at all. Thomas contended that the Indian Commerce Clause only applies to commercial dealings between the federal government and Indian tribes. Some of the Justices also suggested at that time that the law may raise constitutional questions about racial preferences as a violation of legal equality.
The four Indian tribes involved in one of the cases, and their tribal supporters, are joined with the Biden Administration in seeking to keep the focus on the special relationship between the national government and Indian communities, treating tribal identity as a political rather than a racial approach.
Beyond the race question, the next most important issue is likely to be the attempt by Texas and its supporters to narrow the scope of the Indian Commerce Clause itself, perhaps along the lines suggested by Justice Thomas in the prior ruling nine years ago. Tomorrow’s lengthy hearing may provide clues on how the Court’s dominant majority of conservative Justices views that law and its constitutionality.
After Wednesday, the Court will next return to the bench for hearings on November 28. The most important case scheduled for that two-week sitting will be a December 7 hearing on the constitutionality of a theory that gives state legislatures the final authority to decide the outcome of federal elections. That is a theory that has existed since 1892, has never been fully implemented, but was revived by former President Donald Trump and his allies as they tried to overturn his loss in the 2020 election.