In 2017, a white Texas couple named Jennifer and Chad Brackeen wanted to adopt a Native American boy they had fostered for more than a year. But a Navajo family had stepped forward wanting to adopt him, complicating the adoption process for the Brackeens.

The Indian Child Welfare Act, a 1978 federal law, requires first preference for the adoption or foster placement of Native children to be given to family and other members of the child’s tribe.

“We went to court,” Jennifer Brackeen wrote in her blog. “We presented to the judge our petition. We felt it was in (his) best interest to stay right where he was. The place where he KNEW he belonged.”

The state judge, citing the legislation, denied the petition.

“We were absolutely CRUSHED. And SHOCKED. How could this be right?”

When the Native couple changed their minds, the Brackeens were eventually able to adopt the boy. 

In 2018, the Brackeens learned that the biological mother of the little boy they’d adopted had another child, a girl, who she was also putting up for adoption. They moved to adopt her, too. Once again the act was invoked when a great-aunt sought to adopt her. 

A state court ordered what was essentially shared custody — they had to let the baby spend summers with the great-aunt in Navajo country. That case is still working its way through the courts. 

Believing the child welfare act discriminated against the couple based on race, the Brackeens joined a lawsuit challenging the constitutionality of ICWA that was being brought by Texas, Louisiana, Indiana and several other adoptive families. 

Demonstrators stand outside of the U.S. Supreme Court as the court hears arguments over the Indian Child Welfare Act on Wednesday, Nov. 9, 2022, in Washington. The Supreme Court is wrestling with a challenge to a federal law that gives preference to Native American families in foster care and adoption proceedings of Native children. | Mariam Zuhaib, Associated Press

On Nov. 9, that case — Brackeen v. Haaland — was argued before the United States Supreme Court. According to Elizabeth Kronk Wagner, dean and professor at the S.J. Quinney College of Law at the University of Utah, the outcome of this case “has huge ramifications obviously in the context of Indian children and, much more broadly, for tribal sovereignty around the country.” While sovereignty and the futures of countless Native American children hang in the balance, so too do considerations of what constitutes discrimination in American law.

Congress passed the Indian Child Welfare Act in 1978 in an effort to redress what it deemed a problem that was threatening the survival of Native tribes — for decades, as many as a third of Indigenous children were being placed with non-Natives as adoptive or foster parents, or else in boarding institutions.

“Indian children (were) removed at astounding rates,” says Kekek Stark, a law professor at the University of Montana. “In Montana, it was 1,600 times the national average.”

In many boarding houses to which Native children were sent, physical and sexual abuse was rampant. “The theory back then was to erase their tribal identities,” professor Barbara Atwood, of the University of Arizona Law School, says. “A really cruel chapter in American history.”

The Indian Child Welfare Act aimed to change that by establishing a priority range for adoption placements of Native children: first preference would be to return the child to a member of its extended family; second preference would be another member of the same tribe, and then with someone in another, different Native tribe. There are similar standards for foster or institutional placements.

Supporters say that for the past 44 years, the act has been the gold standard for placements of Native children, and that it has helped save hundreds of tribes from the slow decimation of their populations. From the beginning, though, critics have assailed the ICWA as a form of racial discrimination that’s looking out for the continuation of the tribe rather than the best interests of the individual child.

If it involved any other child — white, Black, Asian, Hispanic — the act would be illegal. 

“One of the great, bad things about ICWA is the way that it separates people based on ancestry,” says Tim Sandefur, vice president of legal affairs for the conservative Goldwater Institute, which has filed an amicus brief on behalf of the plaintiffs. “It treats Indian children as if they are a separate people when, in fact, all Indian children are citizens of the United States. Either it’s race-based or it’s national origin-based. Both are considered the same under the law and (are) still an unconstitutional form of discrimination.”

But for hundreds of years, pre-dating the formation of the United States as a country, Native tribes have been legally recognized as sovereign, independent of colonial and later national authority. In Article 1, Section 8 of the U.S. Constitution, Native Americans are referred to in the same context as foreign countries. Tribes signed treaties with the federal government. They are largely ceded judicial and police powers, and control over land rights on reservations. Their unique status allows for Native American casinos in states where gambling is not legal, and the reason why there are no federal taxes on gas and cigarettes sold on the reservations.

Eric Eberhard, professor and associate director of the Native American Law Center at the University of Washington Law School, says, “At bottom, (the legal challenge to ICWA) is an attack on the act, but also an attack on the status of tribes as sovereigns within the federal system which was recognized by the colonists and has been recognized in the United States since independence.”

The issue of race is central to the complicated legal arguments the high court heard. Are Native Americans a race in this context? Or do they have a unique political status in their tribal relationships with the federal government? 

“There’s been numerous statutes that have been enacted because of this political relationship,” says Kronk Wagner, who is Ojibwa Chippewa. “So because of this political relationship, we’re not a racial identity. It takes us out of the normal kind of strict scrutiny analysis for racial discrimination or for treating people differently because of racial identity.”

The Fifth Circuit Court decision the Brackeens are appealing to the Supreme Court did uphold the part of ICWA that says Native Americans are a political entity, even as it overturned other parts of the law. The last time an ICWA case came before the Supreme Court, in 2013, it reaffirmed that part of the statute, too. But the composition of the court has changed since then.

One of the arguments by supporters of the plaintiffs is that the preference for placing Native children with other Natives — and imposing more stringent standards for when a Native child can be removed from a family — has sometimes led to children being sent back to abusive homes even when a non-Native family was willing to take them.

“ICWA forces states to send abused Indian children back to families that the state knows are dangerous and that results in case after case of children who are murdered or beaten or molested by families that the state knows are dangerous,” says Sandefur. “That never would happen if the child were Black, white, Asian, Hispanic or whatever.”

Sandefur cited the horrific story of Tony Renova of Montana, a little boy who was raised by white foster parents from the age of 3 days until he was 5 years old when a Crow tribal court sent him back to his biological parents. His parents allegedly beat him to death.

Adherents of the Indian Child Welfare Act point out that it already contains a “best interests of the child” provision that permits a judge to supersede the preference hierarchy.

They assert that Indigenous children raised away from their culture are often victimized by the psychic stress of cultural disorientation and subject to racial discrimination and abuse for being different. 

“Indian children who were being placed in a non-Indian environment often experienced trauma as a result of that, whether it was identity crises or exposure to racial discrimination,” says Dan Lewerenz, a University of North Dakota law professor and contract attorney with the Native American Rights Fund. “There (are) ways in which placing them in non-Indian environments was seen to be a cause of harm.”  

There are several other complex constitutional issues before the Supreme Court in the ICWA including whether Congress has plenary authority over sovereign Native tribes, whether it contravenes the tradition of leaving child welfare issues to the states, and whether the act goes beyond Congress’s power under the Constitution, according to Atwood. 

The Supreme Court has a menu of options for how it can rule, overturning some parts, sustaining others or passing sweeping judgments either way. If a majority were to ignore precedent and declare that Native Americans are a racial group, that by itself would be a legal earthquake, threatening the ICWA — and the local versions of the ICWA that a number of states have — with potentially far-reaching consequences.

“If the court was to say ICWA was racial,” says Lewerenz, “it has the potential of undermining the entire framework of Indian law.”

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Some Indian Child Welfare Act supporters even claim to see a larger, darker motive behind the conservative groups backing the challenge. They contend the real goal of the litigation is to get the Supreme Court to overturn the legal status of tribes as sovereign, which could open up Native land, and mineral rights, to outsiders, as well as give easier access to Native children for the multibillion-dollar adoption industry.

Sandefur scoffs.

“I guess the idea is that by ensuring that Indian children receive the same legal protections against abuse that white children get, the consequence will be that we’ll be pumping oil out of Navajo Nation or something like that,” he says. “It’s truly ridiculous.”

The two sides agree on one point. There is much at stake in how the Supreme Court rules in Brackeen. 

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