EDITORIAL: Tribal rights The court upholds tribal sovereignty

Jun. 22—Why it matters: The Supreme Court, given an opportunity to further weaken tribal authority, instead upheld it.

The Supreme Court's ruling last week upholding the Indian Child Welfare Act deserves applause. So does the emergence of Justice Neil Gorsuch as the most forthright defender of tribal rights in the high court's history.

The court has in recent years overturned decades of precedents and long-established laws in order to reach the conservative majority's desired conclusions on such issues as guns, abortion, environmental regulations and voting rights, and court watchers anticipate more such rulings to come. But in this case, the court restrained itself from that sort of radical revision.

In Haaland v. Brackeen, the court upheld a 1978 federal law requiring state courts handling adoption cases of Native children to place the child with an Indian family member if possible, or failing that, with a fellow tribal member, and failing that, at least a Native American. A non-Native family is the final resort.

Why that series of priorities? Because for generations, states routinely wrested 25% to 35% of Native children from their families, either to be placed in boarding schools (often, as research into the history of such institutions has demonstrated, with fatal results) or to be adopted by white families in the name of "assimilation."

Gorsuch did not write Brackeen's majority opinion — Amy Comey Barrett did — but his concurrence detailed how the pre-ICWA handling of Native adoption cases "presented an existential threat to the continued vitality of Tribes— something many federal and state officials over the years saw as a feature, not as a flaw."

Gorsuch has shown, in his six years on the court, little concern for sustaining other non-whites or non-males. But he has been a vocal champion for Native rights.

Part of that is his background. He is a Westerner who spent his childhood in Colorado and his lower-court career on the U.S. Court of Appeals for the 10th Circuit, which geographically receives the lion's share of cases involving tribal rights. He has a deeper understanding of, and interest in, these disputes than his colleagues.

And part of it is that, perhaps more than any other justice in the court's history, he takes seriously the Constitution's explicit position on tribal sovereignty: The federal government, not the states, regulates tribal affairs. (Clarence Thomas, on the other hand, appears to regard tribal rights as some sort of historical accident.)

Noah Feldman, a Bloomberg columnist and Harvard law professor, wrote in a piece that ran recently on this page that the Brackeen ruling, with its respect for precedent and legislative intent, shows what a "sane" conservative court looks like. May we see more of that.