U.S. Supreme Court justices appeared divided on Wednesday over the legality of decades-old federal requirements that give preferences to Native Americans and tribal members in the adoption or foster care placements of Native American children.
The justices heard about three hours of arguments in a challenge to the law by a group of non-Native American adoptive families and the Republican-governed state of Texas after lower courts declared parts of it unconstitutional. Democratic President Joe Biden's administration and several Native American tribes are defending the law.
While the justices did not appear willing to entirely strike down the Indian Child Welfare Act of 1978, their questions revealed divisions over whether Congress overstepped its authority in passing it. They also appeared split over whether some of the preferences under the law racially discriminate against non-Native Americans, as the plaintiffs contend.
The law gives "preference" to members of a child's extended family, other tribe members or "other Indian families" in adoptions. Some of the conservative justices raised concerns about that third preference, which can include members of a different tribe.
Conservative Justice Brett Kavanaugh said it would not be permissible for "Congress to say that white parents should get preference for white children in adoption, or that Latino parents should get preference for Latino children."
Conservative Justice Amy Coney Barrett said, "This is just treating Indian tribes as fungible."
The court has a 6-3 conservative majority. The three liberal justices and conservative Justice Neil Gorsuch said Congress viewed the preferences as necessary to protect the sovereign tribes from extinction.