The U.S. Supreme Court hears arguments Wednesday in a case that pits several prospective adoptive parents and the state of Texas against the Indian Child Welfare Act — a federal law aimed at preventing Native American children from being separated from their extended families and their tribes.
This is a case that, more than usual, is steeped in American history. It's also a case that, more than usual, will resonate with the nine justices, seven of whom are parents, including two who have adopted children.
A brief history of the law
In 1978, Congress, after extensive hearings, found that public and private agencies had taken hundreds of thousands of American Indian children from their homes, sometimes by force. These agencies then placed the children in institutions or with families that had no tribal connections.
"About a third of native children were adopted away through ... child welfare agency actions," says Chuck Hoskin Jr., the chief of the Cherokee Nation. "And of that group, about 85% were adopted outside of tribal families."
The tribes saw these actions as a threat to their very existence, and Congress agreed. In response, Congress passed the Indian Child Welfare Act of 1978, known by the acronym "ICWA."
ICWA established minimum federal standards for removing native children from their families and required state courts to notify tribes when an American Indian child is removed from his or her home outside of a reservation. It also implemented a framework for foster and adoption placements that is at issue in this case. The framework requires first preference be given to a member of the child's extended family, then other members of the tribe, and if neither of those is available, a home with a different tribal family.
The case at the heart of the challenge
Now, however, the state of Texas and several families who are adopting American Indian children are challenging the law in court. They contend it amounts to an unconstitutional racial preference, and that the federal law impermissibly intrudes on state autonomy.
Jennifer and Chad Brackeen, from the the Dallas Fort Worth area, are among the prospective adoptive parents who are challenging the law. The couple fostered a baby born to a Navajo mother and a Cherokee father, and, after the native mother's parental rights were terminated by the state, the Brackeens adopted the boy, with the agreement of the tribe. When the same biological mother had another child, a girl, who entered the foster system, the Brackeens got her transferred from another foster home to their home. Now they are seeking to adopt her, too, over the objections of the tribe and the child's great aunt.
"We feel like her closest living relative is her brother ... that's why we pushed to try to get her placed with us," explains Jennifer Brackeen, an anesthesiologist.
"It's heartbreaking to us that there are laws out here that say it's better for her to live in a tribal home, any tribal home ... before she is allowed to stay in our home with her brother," adds Chad Brackeen, a civil engineer who stays home with the children.
The Brackeens' lawyer, Matthew McGill, says: "The real injustice of [ICWA] is that it deprives children of an individualized assessment of their own best interests, and it replaces that ... test with this hierarchy of preferences."
The tribes' view
But the tribes say that the best interests of the child are being considered.
"ICWA doesn't prevent an individualized assessment of the best placement for each child," says Kathryn Fort, director of the Indian Law Clinic at Michigan State University. State courts do this type of assessment "every day," she says, adding, "I personally don't know a state court judge who would be comfortable being told that they weren't allowed to do an individualized assessment."
But for an American Indian child, Fort says, that individualized assessment includes consideration of the child's relationship with her relatives, her language, her religion, and her tribal tradition.
"A child isn't separate from her tribe," she adds. "That child is sacred to that tribe."
Representing the Brackeens in the Supreme Court, lawyer McGill will tell the justices that ICWA's provisions amount to an unconstitutional racial classification.
"It categorizes children based on whether the children are Indian or not Indian," he argues. "And then it categorizes prospective parents based on whether they are Indian."
The Biden administration, like past administrations of both political parties, is defending the law. Citing a string of precedents dating back to the early days of the republic, the government says that ICWA draws classifications based not on race but on connections to tribal groups. And under the Constitution, those tribal groups are separate sovereign nations, essentially a political group.
Lawyer Ian Gershengorn, representing the tribes, notes that "from the very first moments of our constitutional history Congress has legislated for Indians," and therefore, he maintains, "the idea that somehow doing so violates the Equal Protection Clause or is an impermissible racial classification just seems to me impossible to square with the text" of the Constitution.
The family's argument
The Constitution does indeed give Congress nearly complete power to legislate on matters involving trade and relations with American Indian tribes. That constitutional provision is called the Indian Commerce Clause. But the Brackeens counter that their case is about a child, identified as Y.R.J., not about commerce.
Y.R.J. "is not the property of the Indian tribe," lawyer McGill says. "She is a citizen of the Unites States and also a citizen of the state of Texas ... there is no reasons why this child should not have all the same rights as every other child born in the state of Texas."
The state of Texas is challenging ICWA on separate grounds, as well. The state maintains that the federal statute is unconstitutionally forcing the state to carry out a federal mandate, and in doing so is essentially violating the state's own regimen for dealing with adoptions.
Lawyer Gershengorn rejects that argument out of hand, noting that in many areas of the law, Congress tells the states how they must comply with a federal mandate. He points, for example, to a federal law telling the states that they can't make a child custody determination based solely on the fact that one of the parents is a deployed servicemember. Or, he says, consider the immunity that Congress has given to gun manufacturers in state court. "Nobody thinks that's problematic," that a state court is forced to follow what Congress said, he observes.
There is no way to know how many thousands of native children are removed from a biological parent's home, or how many are involved in subsequent adoptions. But professor Fort says most of these cases are not contentious, noting that nationwide, from 2015 to 2021, there were appeals in just 254 cases.
That is no comfort to those involved in months or years of adoption disputes, nor is it any comfort to the more than 500 American Indian tribes who see this case as a foot in the door that could lead to other cases challenging their rights involving land, water, oil, mineral, and highly profitable gaming rights.
