NRPLUS MEMBER ARTICLE I t’s been a good stretch for racial discrimination at the Supreme Court — at least, when Congress orders it. Last week, in Allen v. Milligan, the Court required Alabama to draw two specially segregated congressional districts for black voters. Today, in Haaland v. Brackeen, the Court upheld a congressional statute that prefers to have Native American children adopted by Native American parents, even when a child’s own biological parents say otherwise. In addition to the Court’s three liberals, who predictably sided with laws drawing racial distinctions in both cases, both decisions were joined by Chief Justice John Roberts (who wrote Allen) and Justice Brett Kavanaugh. The Haaland decision was written by Justice Amy Coney Barrett and joined by Justice Neil Gorsuch. Only Justices Clarence Thomas and Samuel Alito dissented in both cases.
When can the government openly discriminate on the basis of race? We may get a much firmer answer when the challenges to racial preferences in college admissions come down in the next two weeks. For now, one answer is that the Court will be more deferential when it’s Congress doing the race-discriminating. That may not be such good news for the colleges, whose actions are being challenged for violating the federal Civil Rights Act as well as the Constitution.
Nationalism and the Tribes as Nations
When should the government openly discriminate on the basis of race? In general, it shouldn’t. But Haaland, which upheld provisions of the Indian Child Welfare Act (ICWA) of 1978 against multiple constitutional challenges, raises some thorny questions not only about race but about nationalism.
Our American creed sees all citizens as equal regardless of race and aspires to be color-blind in doing so. America is an ideal first, and a people second; we pride ourselves on the idea that anyone can become an American if they will just adopt our principles, and we look back with disapproval at historical examples of Americans not acting on those principles. But most nations are not like America.
Around the world, nationalists take a different view: There are individuals, but there are also peoples, communities forged by a common history and language into nations and tribes. Dispersing those peoples, or diluting them by mass immigration, does damage to the community, the nation, and its culture. The right to keep one’s nation as a distinct cultural and historical entity is the demand of Hungarian and Israeli nationalists alike. This is not merely an illiberal, culturally chauvinist idea. National self-determination was the great liberal cause of the post–World War I era and the anti-colonial era of the 1950s and 1960s. It was, to some extent, the cause for which the West went to war against Iraq and Serbia in the 1990s, protested China’s treatment of Tibet and the Uyghurs, and supports Ukraine today. The cause of maintaining the integrity of a people as a nation underlies the expansive definition of genocide in international law.
Underlying the ICWA is the notion that the Native American tribes have a similar nationalist claim to preserving their identity as a people in the face of the liberal, individualizing tendencies of the American creed and culture. It rests, at some level, on a recognition that the tribes never consented to be Americans. Even the 14th Amendment, the great statement of American equality before the law, excluded Native Americans from birthright citizenship. Proponents of the amendment in Congress said as much: Senator Jacob Howard argued that “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.” Birthright citizenship was given to Native Americans only by an act of Congress in 1923.
The adoption-privilege provisions of the ICWA at issue in Haaland do not merely protect the separate sovereignty of the tribes as organizations; they embody a particular view of blood-and-soil nationalism of the tribes that clashes with the American creed. The ICWA creates a strong presumption that a Native child should be adopted by a member of his or her own tribe, and failing that, by a member of any tribe rather than a non-Native American of any race or ethnicity — even that of the child’s own non-Native mother or father. Barrett’s opinion for the Court quoted the reasoning of Congress in 1978 in terms that sound positively Orbánist — and even echo the progressive critics of Barrett’s own adoption of two Haitian children:
As Congress put it, “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” . . . Testifying before Congress, the Tribal Chief of the Mississippi Band of Choctaw Indians was blunter: “Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People.”
That placement of the national rights of the tribes over the rights of the individual can have stark consequences on Native Americans and non-Native Americans alike. In one of the cases before the Court, that of the Brackeens, their adoption of a Native American child they took into foster care was supported by the child’s own Native American parents and grandmother but was opposed by the Navajo and Cherokee Nations on the grounds that the tribes had a superior claim to preserve their tribal bloodlines. In another, that of Altagracia Hernandez, a non-Native mother of Hispanic origin chose non-Native adoptive parents, a choice supported by the Native American biological father, but the father’s ancestral tribe (the Ysleta del Sur Pueblos) objected. (It later withdrew that objection but would have won under the Court’s reading of the ICWA.)
Unequal Protection
The non-Native adoptive parents argued that this scheme of deliberate racial preference violates the equal-protection clause. The Court dodged the issue, finding that it couldn’t order a different outcome because the lawsuits had not named the state courts and state agencies carrying out these adoption rules as defendants. That is ironic, given that the Court alsoheld that Congress could properly order the state courts and agencies to do its bidding. But as we saw in the Texas abortion case, there is a separate set of problems with federal courts ordering around the state courts.
Justice Gorsuch, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, embraced the ICWA’s tribalist ethos, although Gorsuch’s opinion was careful to limit it to the specific history of Native American tribes (for whom Gorsuch has long shown a special solicitude). He described as “darker designs” the federal government’s aim of “destroying tribal identity and assimilating Indians into broader society.” That policy, dating back to the Grant administration, was consistent with what Grant was then simultaneously trying to on behalf of freed slaves via Reconstruction, but also with that era’s Republican hostility to Catholic education and Mormon polygamy.
Of course, as Gorsuch observes, the assimilation policies of the 1870s grew into a long and abusive history of governmental interference with the Native American family (something the federal government did less deliberately to the African-American family with the Great Society). In the view of Gorsuch, Sotomayor, and Jackson, a long history of this sort of thing called for the ICWA’s approach of not only making it harder to break up Native American families, but also stopping the “removal of Indian children from tribal life.” That gives Congress, in Gorsuch’s view, the power and duty to preserve the tribes as peoples and prevent their demographic dissipation:
At the risk of stating the obvious, Indian commerce is hard to maintain if there are no Indian communities left to do commerce with. . . . Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. . . . Congress [adopted the ICWA] to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history. (Emphasis added).
The nature of a tribe, in Gorsuch’s view, requires a different and more blood-related constitutional status than the nature of a state or county:
As nouns, “States” and “Indian Tribes” are not alike—and they were not alike at the founding. “States” generally referred then, as it does today, to a collection of territorial entities. Not so “Tribes.” That term necessarily referred to collections of individuals. . . . Want proof? Dust off most any founding-era dictionary and look up the definition of “Tribe.” [Citing dictionary definitions such as] “the particular descendants or people sprung from some noted head, or a collective number of people in a colony.” (Citations omitted)
Three justices were more hostile to the ICWA’s tribal-nationalist approach. Kavanaugh, in a lone concurrence that bodes poorly for the colleges in the upcoming case, observed that “the equal protection issue is serious” because either a child or an adoptive parent may face different outcomes “because of the child’s race [or] because of the prospective parent’s race. Those scenarios raise significant questions under bedrock equal protection principles and this Court’s precedents.” Alito, in dissent, noted that he was “sympathetic to the challenges that tribes face in maintaining membership and preserving their cultures,” but he nonetheless thundered that Congress “does not have the power to sacrifice the best interests of vulnerable children to promote the interests of tribes in maintaining membership.”
Thomas, as is often the case, struck a much more color-blind note. He observed that 87 percent of Native Americans today live off the reservations as American citizens. He compared the ICWA to a law through which “the Federal Government tried to regulate the child custody proceedings of U. S. citizens who are eligible for Russian, Mexican, Israeli, or Irish citizenship.” He observed that even the Hague Convention does not support such a broad bloodline-based power in international adoptions.
Federal Power and the Tribes
While the racial-nationalist aspects of Haaland are its most striking feature, much of the actual decision turned on disputes over the limits of federal power. The adoptive parents and the State of Texas argued that Congress lacked the power to regulate Native American adoptions and that it specifically could not “commandeer” state courts and bureaucracies to enforce its provisions.
Barrett acknowledged that the Court has a long history of reading congressional power over Indian affairs broadly without being specific about where that power comes from — some of it is just the “necessary concomitants of nationality” exercised federally even under the Articles of Confederation. She warned that, in spite of the breadth of such powers and the “unwieldy” nature of the Court’s prior case law, “Article I gives Congress a series of enumerated powers, not a series of blank checks,” and “Congress’s authority to regulate Indians must derive from the Constitution, not the atmosphere.” But she ended up throwing up her hands, concluding that the challengers simply hadn’t offered the Court any principled line it could follow in order to abrogate the ICWA and hadn’t even explained whether that meant following the Court’s case law or overruling some of it. “The Constitution does not erect a firewall around family law.” In the end, without a clear rule to follow, the tie goes to Congress.
Justice Thomas, as usual, was unimpressed with this argument: “This gets things backwards. When Congress has so clearly intruded upon a longstanding domain of exclusive state powers, we must ask not whether a constitutional provision prohibits that intrusion, but whether a constitutional provision authorizes it.” He noted that the Articles of Confederation, while giving Congress little functional power, had contained unusually broad language granting it “the sole and exclusive right and power of . . . managing all affairs with the Indians” — language not continued in the 1787 Constitution despite proposals (one by James Madison) to do so.
Thomas argued that an intelligible principle was not really so hard to find but was obscured by bad precedents. “The Court’s precedents have repeatedly referred to a ‘plenary power’ that Congress possesses over Indian affairs, as well as a general ‘trust’ relationship with the Indians,” he conceded, but “I have searched in vain for any constitutional basis for such a plenary power, which appears to have been born of loose language and judicial ipse dixit” tracing all the way back to one of the Trail of Tears cases in 1831.
Justice Alito, also characteristically, was less ambitious than Thomas: “We need not map the outer bounds of Congress’s Indian affairs authority to hold that the challenged provisions of ICWA lie outside it” because the statute “violates the fundamental structure of our constitutional order.” Gorsuch shot back that “States have virtually no role to play in managing interactions with Tribes.” Again, that raises the question: In a case outside tribal lands, involving non-Native adoptive parents and without the objection of any family member of the child, is the presence of a child with tribal heritage by itself enough to raise a matter of interaction with the tribe due solely to the child’s bloodline?
Federal Power and the States
As to the charge of commandeering states to carry out federal power, the Court concluded that “legislation that applies ‘evenhandedly’ to state and private actors does not typically implicate the Tenth Amendment.” This is frankly an unpersuasive argument, given that the various situations Barrett identifies in which the ICWA regulates private parties — such as a private adoption — come down to relationships that are under the purview of, and subject to the final approval of, the state. On the other hand, it is extremely challenging to make an anti-commandeering argument about state courts, which under all circumstances are required to apply federal law when it displaces state law. As Barrett observed: “End of story.”
The Court continues to be unsympathetic to federal mandates that impose record-keeping obligations on the states. Not only did Barrett find that history supports some level of federal mandates on the states, she also followed the tack taken by the Court in the 2021 Obamacare mandate case, California v. Texas, which concluded that a state doesn’t have standing to challenge a federal law’s substance simply because the law carries out that substance in part by record-keeping requirements imposed upon the states.
Haaland is a victory for a race-conscious federal policy aimed at the demographic survival of the Native American tribes. The use of race to divide up academic opportunities among individuals, however, involves quite different questions. Stay tuned.