The Supreme Court on Wednesday took up a challenge over the legality of a 44-year-old federal law that gives preferences to Native Americans and tribal members in the adoption or foster placements of Native American children, revealing a potential alignment between Justice Neil Gorsuch and the…
The Supreme Court on Wednesday took up a challenge over the legality of a 44-year-old federal law that gives preferences to Native Americans and tribal members in the adoption or foster placements of Native American children, revealing a potential alignment between Justice Neil Gorsuch and the three liberal justices.
Challengers to the decades-old law argued that some of its preferences racially discriminate against non-Native Americans in violation of the Constitution's equal protection clause under the Fifth Amendment."ICWA violates the Constitution’s equal-protection guarantee by categorizing children based on genetics and ancestry and potential adoptive parents based on their race," Texas argued in a court filing.
Gorsuch's apparent alignment with Justices Kagan, Sonia Sotomayor, and Ketanji Brown Jackson would only make four votes out of the nine-member court, though the rest of the high court's conservative bloc appeared wary of striking down the entire law. "However, the lack of much discussion about the argument that ICWA creates an impermissible racial classification suggests that the court is not ready to strike down the entire structure of the unique relationship between the federal government and Native American tribes," Kappelman said of full court's response to the arguments presented Wednesday.
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