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Supreme Court hears arguments challenging the Indian Child Welfare Act

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The Supreme Court's conservative majority seemed conflicted today as the justices heard arguments challenging the Indian Child Welfare Act, known as ICWA. The law was enacted more than 40 years ago after a congressional investigation found that public and private agencies had removed a third of all Native children from their homes and placed them in institutions or homes with no ties to Indian tribes. NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: ICWA established minimum federal standards for removing Native children from their homes. It required state courts to notify tribes when an Indian child is removed from her family, and it required that, in foster and adoption placement, preferences be given first to the child's extended family, then to other members of the tribe. And if neither is available, the preference is for a child to be placed with a different tribe. In the court today, lawyers for the state of Texas and for non-Native adoptive parents told the justices that ICWA violates the Constitution by discriminating based on race.

Some of the justices noted that, if the court were to strike down ICWA, legions of cases dating back to the early days of the republic would have to be similarly struck down. Justice Gorsuch noted that the Constitution gives Congress plenary authority - meaning complete authority - to legislate on behalf of Indian Americans. Addressing the lawyer for the challengers, Gorsuch, like several other justices, said the challengers' objections to ICWA are really objections to the policy choices that Congress adopted in the law.

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NEIL GORSUCH: The policy arguments might be better addressed across the street.

TOTENBERG: Meaning that if you want to change the law, go to Congress, not the courts. The court's liberals joined Gorsuch in noting that the court has long viewed Indians as a political group - not a racial one. The tribes are viewed as separate sovereigns under the Constitution, and Congress has enacted a wide variety of laws to protect Native people. This law, noted Justice Kagan, was enacted for a particular purpose - to protect the tribe's very existence. Representing the state of Texas, Solicitor General Judd Stone argued that even if Congress does have the authority to legislate to protect the tribes, Congress does not have the authority to enlist state governments in enforcing the law.

Justice Sotomayor pointed to a wide variety of other laws in which the federal government requires states, for instance, not to conduct any custody or adoption hearing that involves a service member who's deployed. And similarly, the federal government bars default judgments against deployed service members. Those challenging ICWA maintained that Congress cannot legislate for Indians who do not live on a reservation. That prompted Justice Gorsuch to observe that, in the West, Indians live on a, quote, "checkerboard of land," with many on reservations and their Indian neighbors not on a reservation. But Chief Justice Roberts and fellow conservatives Kavanaugh, Thomas and Alito focused repeatedly on ICWA's third preference for placement in a tribal home instead of an adoption by a non-Indian family. As the chief justice put it...

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JOHN ROBERTS: Is competence the threshold, or is the agency allowed to consider the relative best interests of the two different proposed placements?

TOTENBERG: Representing the federal government, Deputy Solicitor General Edwin Kneedler said the purpose of the law is to prevent children from being taken away from their families, from their extended families, from their tribes and their kin. Chief Justice Roberts picked up the same theme in questioning the lawyer for the tribes, Ian Gershengorn.

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ROBERTS: Do you think that ICWA incorporates the familiar best-interests-of-the-child inquiry that are applied in family courts throughout the country?

TOTENBERG: No, replied Gershengorn, because Congress found the best interests were being applied in a discriminatory way. That said, he added, ICWA has a provision allowing special exemptions in some cases. Justice Kagan followed up.

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ELENA KAGAN: I think some of the strong feelings about this case come from a sense of, yes, but what about the children? I mean, you do harm the political community, but are you saying that the political community is more important than the welfare of the children?

TOTENBERG: The Supreme Court's expected to decide the case by the end of this term. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

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.