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Supreme Court ruling will decide the future homes of Native American children

The Indian Child Welfare Act will be challenged before the Supreme Court on Wednesday, possibly threatening the stability of tribal nations going forward

SHARE Supreme Court ruling will decide the future homes of Native American children
The U.S Supreme Court is seen on Oct. 11, 2022 in Washington.

The U.S Supreme Court is seen on Oct. 11, 2022 in Washington.

Mariam Zuhaib, Associated Press

The case of Haaland v. Brackeen may determine the home of more than one Navajo child. Many Native American tribes across the country anxiously anticipate the Supreme Court’s ruling, as it will decide the fate of the Indian Child Welfare Act, the law that keeps Native American children who are in the foster care system in the custody of Native American families where possible.

Wednesday, the Supreme Court will begin hearing oral arguments in the case.

The Indian Child Welfare Act was established in 1978 in response to the overwhelming evidence of Native American children being taken from tribes and adopted by white families, despite familial or tribal ties on reservations. According to the Native American Rights Fund, the act was meant to give jurisdiction back to tribal nations, allowing children in foster care and up for adoption that are eligible for tribal membership to find homes closely tied to their ancestry.

The Native American Rights Fund refers to the act as the “gold standard in child welfare practice,” as it keeps Native American children connected to their culture and heritage and prevents what it calls “cultural genocide” akin to assimilation efforts of the late 1800s, the Equal Justice Initiative wrote. But the law also prevents those that are non-native from adopting Native American children, a result that can be discriminatory to those of other races.

The case in question, Haaland v. Brackeen, follows the custody battle of a 4-year-old girl of Navajo descent, known in the courts only as Y.R.J. Dr. Jennifer Brackeen and Chad Brackeen of Texas, both white, had fostered and then adopted Y.R.J.’s older half-brother after placement alternatives through the tribes kept falling through, the New York Times reported. When the couple learned of Y.R.J. and that she would be placed into the foster care system after her birth, the Brackeens filed for custody.

The court initially ruled that the Brackeens would share custody with Y.R.J.’s great-aunt, also of Navajo descent. Both the Navajo and the Brackeens appealed, however, launching the case’s journey toward the Supreme Court.

Despite the Indian Child Welfare Act, the Brackeens have gone through the federal district court, Fifth Circuit Court of Appeals and Fifth Circuit to adopt the child, who has been living with them for most of that child’s life. The couple hopes the case will invalidate the Indian Child Welfare Act, claiming that it is unconstitutional.

Depending on how the Supreme Court rules in Haaland v. Brackeen, the homes of displaced Native youths in the future could be drastically different. As The Washington Post wrote, the Brackeens — who are backed by the states of Texas, Louisiana and Indiana, per NPR —  argue that the act is discriminatory on the basis of race and requires a state to enforce what is a federal law.

The Biden administration and five Native American tribes defend the law, saying it relates to membership in a tribal nation, not a racial group. This claim calls into question whether Native American tribes are racial or political groups, a debate that threatens the basis of tribal nations’ political presence.

Robert Miller, a professor of federal Indian law at Arizona State University, a tribal court judge and member of the Eastern Shawnee Tribe, told The New York Times that a ruling of this nature would threaten the treaties, properties and rights of the tribes.

“All of a sudden, lands would be owned by ‘a race of Indian people,’ not a tribal government,” Miller said. “Your borders, your police laws, everything on the reservation would be in question. I’m not being hyperbolic. I am afraid of this case.”

Since the first trial, the Indian Child Welfare Act has garnered the support of two dozen state attorneys general, the Native American Rights Fund and even the American Medical Association, The Washington Post reported.