The Supreme Court voted 7-2 Thursday to uphold the 1978 Indian Child Welfare Act's placement preferences. Accordingly, Native Americans will continue to receive preferential treatment on the basis of race and tribal affiliation when it comes to adoption and foster care proceedings involving "capaciously" defined Indian children.

This decision, which dissenting Justice Clarence Thomas suggested was predicated upon "backwards" thinking, means that even if biological parents, adoptive non-Indian parents, the Indian child, and a court are in agreement about a proposed adoption, unrelated tribesmen ranked higher on the racial totem pole under the ICWA can unilaterally intervene, designate the child a tribe member, then tear the child away from his loving family.

That's precisely what activists attempted to do to Chad and Jennifer Brackeen, the Christian couple from Texas among the three couples who brought this case forward.

The Brackeens were subjected to outside efforts by strangers to break up their family after welcoming a young Indian boy into their home in 2016. Despite a concerted effort by identitarians to see their family disbanded, the Brackeens were able to successfully adopt the child in 2018. However, their saga was far from over.

The biological mother of the boy later gave birth to a girl, whom she wanted placed with the Brackeens and the girl's brother. This spurred more segregationist efforts.

TheBlaze previously reported that the Navajo nation figured the baby girl and the young boy ought live among other Navajo people, even if that meant boarding them with distant relatives and total strangers.

Again, the Brackeens fought back — with their lawyers suggesting that the law poised to snatch their little girl away is "racial discrimination" federally codified.

The Brackeens and two other white families advanced their case against five tribes and the Interior Department, stressing that the ICWA's placement preferences "disfavor non-Indian adoptive families in child-placement proceedings involving an 'Indian child' and thereby disadvantage those children — discriminate on the basis of race in violation of the U.S. Constitution," reported SCOTUSBlog.

Under the federal statute's placement preferences, affirmed by the Supreme Court, if an Indian child goes into foster care or up for adoption, "Indian families or institutions from any tribe (not just the tribe to which the child has a tie) outrank unrelated non-Indians or non-Indian institutions. Further, the child's tribe may pass a resolution altering the prioritization order. ... The preferences of the Indian child or her parent generally cannot trump those set by statute or tribal resolution."

While Justice Amy Coney Barrett, who wrote for the majority, recognized that the "issues are complicated," she joined Justices John Roberts, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson in rejecting the Brackeens' challenge to the constitutionality of the federal law.

Barrett wrote, "The bottom line is that we reject all of petitioners' challenges to the statute, some on the merits and others for lack of standing."

SCOTUSBlog indicated the majority had determined that Congress had the authority to enact the law; the plaintiffs' anti-commandeering challenges under the 10th Amendment did not hold up; and the parties lacked standing to litigate their other ICWA placement preference challenges.

Justices Clarence Thomas and Anthony Alito Jr. filed dissenting opinions, stressing that Congress grossly overstepped its power.

Alito accepted the plaintiffs' principal theory that the ICWA "treads on the States' authority over family law. Domestic relations have traditionally been governed by state law; thus, federal power over Indians stops where state power over the family begins."

"These cases concern the Federal Government's attempt to regulate child-welfare proceedings in state courts. That should raise alarm bells," Thomas wrote, noting that the federal government "lacks a general police power to regulate state family law."

Thomas stressed that in the ICWA, "Congress ignored the normal limits on the Federal Government's power and prescribed rules to regulate state child custody proceedings in one instance: when the child involved happens to be an Indian."

The majority got things "backwards" in suggesting that petitioners have not borne their burden of showing how Congress exceeded its powers with the ICWA, suggested Thomas, adding the law "lacks any foothold in the Constitution's original meaning."

"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 wrote in his dissenting opinion.

Extra to getting things backwards, the majority, according to Thomas, "gesture to a smorgasbord of constitutional hooks to support ICWA; not one of them works. First, the Indian Commerce Clause is about commerce, not children. ... Second, the Treaty Clause does no work because ICWA is not based on any treaty. Third, the foreign-affairs powers (what the majority terms 'structural principles') inherent in the Federal Government have no application to regulating the domestic child custody proceedings of U.S. citizens within the jurisdiction of States."

Thomas further hinted at the potential for continued and possible wide-reaching abuse, especially since the law applies not just to children who are members of an Indian tribe, but to those who are eligible for membership in a tribe or are children of a tribe member, stating the "ICWA defines 'Indian child' capaciously."

Timothy Sandefur, the vice president for legal affairs at the Goldwater Institute, said, "We’re talking about a law that strips children of legal protections based on their racial ancestry. ... This law, for example, makes it harder for state officials to protect abused and neglected Indian children."

Cherokee Nation principal Chief Chuck Hoskin Jr., Morongo Band of Mission Indians Chairman Charles Martin, Oneida Nation Chairman Tehassi Hill, and Quinault Indian Nation President Guy Capoeman said in a joint statement, "We hope this decision will lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long."

The New York Times reported that there is uncertainty in the aftermath of the court's decision about the future of one the Brackeens' adopted children.

Thomas Graham, a spokesman for the family, said the Brackeens' 5-year-old daughter "has been part of their family for over four years. ... They wish to say they love Y.R.J. more than words can describe and will continue to fight to adopt her and keep her united with her brother, whom the Brackeens also adopted."

The Associated Press reported that Matthew McGill, who represented the Brackeens at the Supreme Court, intends to press a racial discrimination claim in state court.

"Our main concern is what today’s decision means for the little girl, Y.R.J . — now five years old — who has been a part of the Brackeen family for nearly her whole life. The Court did not address our core claim that ICWA impermissibly discriminates against Native American children and families that wish to adopt them, saying it must be brought in state court," McGill said in a statement.

Meet the Brackeen Familyyoutu.be

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SCOTUS upholds law that assigns child custody on basis of race, putting Christian Texas family at risk of being torn apart: 'Should raise alarm bells'

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SCOTUS upholds law that assigns child custody on basis of race, putting Christian Texas family at risk of being torn apart: 'Should raise alarm bells'

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