The U. S. Supreme Court will decide on a pivotal case involving the Indian Child Welfare Act in the coming weeks.

The case is called Haaland v. Brackeen and centers on a Texas couple who successfully adopted a Navajo child but are now arguing before the court that the 45-year-old law is unconstitutional because it prevents non-Native families from adopting Native children. They say the law is race-based, and their lawyers are arguing that tribes aren't political entities as laid out in the US Constitutions, but rather a racial classification.

Four tribal nations argue the law needs to stay intact because it protects Native families after centuries of harmful policies and practices like forced removal during the boarding school years and adoption policies set out in the 1950s and 60s that also removed children from the families and communities.

Oral arguments took place last fall and there were several questions before the court.

William Norman is an attorney with Hobbs, Straus, Dean and Walker, a law firm that represents tribal nations and tribal organizations throughout the country.

He says that the political climate has contributed to the questioning of the validity of this law and whether congress has plenary power over tribal nations. KOSU’s Allison Herrera talked with Norman in his Oklahoma City office. Their conversation is below.

Allison Herrera: So the first question I wanted to ask you is if you listened to the oral arguments last fall for the Brackeen case, what did you make of the questions that the judges asked and did that give you any indication of how they would rule on this case?

William Norman: My sense was that the judges are really struggling on a number of fronts. There are several issues in front of them related to the case, and the questions seemed to reflect that they have questions about equal protection, of course, and whether there's a proper standard to apply or not, whether the existing case of Morton applies. And we're just looking at a rational basis standard or whether there's a more intense standard and level of scrutiny that an act like the Indian Child Welfare Act could overcome in order to be constitutional. They were looking at issues of standing, whether or not the parties had the right to be in front of the court based upon the way that the case came before them. And they had questions about commandeering whether or not there were elements of the case that would have violated the doctrine of anti commandeering in the sense that that would have been the federal law that directs a state to do something and would be therefore unconstitutional.

Herrera: For those of us who are not law nerds, what is the Morton case?

Norman: Morton v Mancari is a case from the seventies which solidified the fact that tribes are political bodies. They're not racial entities, they're politically constituted entities that predate the United States and therefore are not deemed to be a racial classification 

Herrera: This law has been in effect for more than 40 years. Why is this question coming before the court now?

Norman: That's a great question. I think fundamentally, what we have seen over the last several years is that there is a concerted effort on the part of a conservative group that is looking to unwind federal Indian law from the standpoint of this political classification that I've talked about and have matters of Indian law and Indian tribes treated as a racial classification. And really that's the real danger associated with this case.

Herrera: When you said that they were struggling to figure out whether or not the plaintiffs had standing, I'm guessing you're talking about the line of questioning that [Justice Neil] Gorsuch had for the lawyer [representing the State of Texas and the Brackeens].

Norman: The question was whether or not there would be any relief that the court could give them with regard to state courts in Texas. And this is the design of the legislation. And so the question is, what can the court do for the state of Texas for those individual plaintiffs? I thought it was interesting, too, that Justice Thomas stepped into the standing argument as well and asked the question, why was the state of Texas there when, in fact, the individual, adoptive or prospective adoptive families could have representation on their own? 

Herrera: I want to go back to the makeup of the court. A lot of people seem to think that Coney Barrett is the one that's going to swing the decision one way or the other. What did you make of her questions and given her political background?

Norman: She's been an interesting addition to the court. I think there was probably an expectation when she came on board about what her vote would be on every occasion. But we have seen her exercise an independent academic mind when it comes to different issues. And she took a different view on a couple of issues, even in terms of her questioning here. She seemed to appreciate the fact that Congress has plenary authority when it comes to Indian law and really questioned, you know, the plaintiffs lawyers with respect to that. And we thought that was refreshing from the standpoint that we look at the case.

The Constitution of the United States granted Congress plenary authority or unconditional power over Indian matters through the Indian Commerce Clause, and they have exercised that right. We've never seen an Indian Child Welfare Act case really question the plenary authority of Congress.

Herrera: If the Supreme Court says, OK, we're going to keep the law intact, but we think that this violates the commandeering clause. How would tribes in Oklahoma be able to move forward if the court does that?

Norman: I think it's going to be difficult. The relationship is an imperfect one, but it's one that the tribes in the state have worked on over the years. Oklahoma has its own Indian Child Welfare Act, which is an attempt to adhere to the federal law and its requirements. And there are lots of experienced practitioners in the social services that understand the obligations that they have under that law. I think what this does is exacerbate the problem where we have folks that are less than willing to adhere to the Indian Child Welfare Act requirements, both on the federal and the state level. And that certainly is going to make life more difficult for the tribes, you know, based upon their understanding of the law. And what we will expect to see is probably greater resistance from the state.

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