Fate of Indian Child Welfare Act in hands of divided Supreme Court

On Wednesday, November 9, the Supreme Court heard arguments surrounding the constitutionality of the Indian Child Welfare Act (ICWA), passed by Congress in 1978, which details the procedure for the removal of a Native American child from their family.[1] If a child is up for adoption or foster care, the law requires that preference be provided to the child’s extended family and then their tribe, after which the law requires the child be placed with another tribe before a non-Native American family.[2] Prior to this Act, almost a third of Native American children were separated from their families and tribes, depriving them of access and immersion in their cultural heritage[3]. The plaintiffs allege that this system is racially discriminatory.

At the center of this case is the authority granted to Congress to legislate Native American tribes and the power of the Supreme Court to rule on such actions. Article I of the Constitution states that Congress has the right “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”[4] The Court has since interpreted this clause to mean that Congress has power in regards to all tribal affairs. The Supreme Court normally defers to the ‘plenary power’ doctrine, which gives Congress complete power.[5] If the Court finds the law racially discriminatory and therefore unconstitutional, then the possibility of Native American child being separated from their families and tribes greatly increase. If the law is upheld, it would represent the Court’s continued deference to Congressional actions in relations with Native tribes.

Oral arguments revealed a fractured within the Court’s conservative wing, with Justice Gorsuch referencing the presence of plenary power. Justice Alito conceded that he struggles with the language and interpretation of the Constitution, stating that “If plenary means plenary, Congress can do whatever it wants….It’s an easy case… [but] if there are limits, it’s hard for me to see what the limits are.”[6] In addition to plenary power, the Court noted how Native Americans are classified as a political, not racial, group, a designation that has allowed Congress the authority to recognize them as being granted sovereignty by the Constitution. Not only must the Court consider these factors, but they also must confront the question of whether preference constitutes discrimination, an answer they seemingly answered in Morton v. Mancari.[7] In the case, the Court found that preferences were “reasonably designed to further the cause of Indian self-government.”[8] However, the Court has also repeatedly stated that laws barring children from being adopted by parents of a different race are unconstitutional, a point multiple conservative justices made during oral arguments. Ultimately, the fate of the Indian Child Welfare Act rests in the hands of justices that are weighing a multitude of complex legal factors, yet just as important, the social implications of their decision may reverberate throughout tribes across the US for generations to come.