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Supreme Court upholds Indian Child Welfare Act, handing tribes a major victory


The U.S. Supreme Court has rejected all challenges to the Indian Child Welfare Act. The justices left unresolved a key argument that challengers had raised. Nonetheless, the decision was a huge win for Native American tribes. The 7-to-2 opinion, written by Justice Amy Coney Barrett, left the statute entirely intact. Joining us now to discuss is NPR legal affairs correspondent Nina Totenberg. Hi, Nina.


FADEL: So this was an unexpected ruling. Most legal experts had expected the law to be curtailed in some way, but that's not what the court did. What did the court do?

TOTENBERG: Well, Justice Barrett wrote the majority opinion, as you said, and she said - and I'm quoting - that "the court rejects all of the challenges to the Indian Child Welfare Act, some on the merits and others for lack of standing," meaning they had no right to be in court. So the Supreme Court decided one key issue in the case, but it didn't decide the other.

FADEL: And what did the dissenters say?

TOTENBERG: No, you need to ask me about what the court actually said (laughter). What the court said is that the Indian Child Welfare Act is aimed at preventing the Native American children from being separated from their extended families and the tribes. And this all comes from the act, which was enacted a long time ago, in 1978, when Congress found that public and private agencies had taken hundreds of thousands of American Indian children from their homes, sometimes by force. And these agencies then placed the children in institutions or with families that had no tribal connections. And the tribes saw these actions as a threat to their very existence. Congress agreed, and in response, it passed the Indian Child Welfare Act in 1978, known as ICWA, which Justice Barrett said today is an odd-sounding name.

Among other things, ICWA implemented a framework for foster and adoption placements that were at issue in this case, and those required first preferences to be given to a member of the child's extended family, then other members of the tribe and if neither of those is available, a home with a different tribal family. But the state of Texas and several families who are adopting American Indian children challenged the law in court and contended it impermissibly intrudes on state autonomy and it enshrines an unconstitutional racial preference. So the court decided what's called the commandeering argument and said, I'm sorry to the parents. You don't win on this one because we have a long line of cases that say the federal government in the area of Indian law has complete, or plenary, power to do pretty much what it wants. So the commandeering argument was out of luck. And then they went on to the other argument, the racial preference argument, and they didn't decide it.

FADEL: And very quickly, in the few seconds we have left, what did the dissenters say now that you explained the case?

TOTENBERG: The dissenters said it is a racial preference in their view. They said that - at least they suggested that. And they also said that in their view the federal government had done something it can't do under our Constitution - that is, commandeer the state's apparatus and impose the federal government's desire on how it should work when it comes to family law.

FADEL: NPR legal affairs correspondent Nina Totenberg, thank you. Transcript provided by NPR, Copyright NPR.

Leila Fadel is a national correspondent for NPR based in Los Angeles, covering issues of culture, diversity, and race.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.

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