The U.S. Supreme Court is set to hear arguments Wednesday on the most significant challenge to a law that gives preference to Native American families in foster care and adoption proceedings of Native children.
The outcome could undercut the 1978 Indian Child Welfare Act, which was enacted in response to the alarming rate at which Native American and Alaska Native children were taken from their homes by public and private agencies. Tribes also fear more widespread impacts in the ability to govern themselves if the justices rule against them.
The law requires states to notify tribes and seek placement with the child’s extended family, members of the child’s tribe or other Native American families. It’s long been championed by tribal leaders as a means of preserving their families, traditions and cultures.
Three white families, Texas and a small number of other states claim the law is based on race and is unconstitutional under the equal protection clause. They also contend it puts the interests of tribes ahead of children. Lower courts have been split on the case.
“This is an all-out nuclear war attack on ICWA,” said Mary Kathryn Nagle, a Cherokee attorney for the National Indigenous Women's Resource Center who filed a brief in support of the law. “We have not seen that before. That’s either ironic or interesting, because the law has been on the books for 44 years, and this is the first time the constitutionality of the law has been challenged. This is unprecedented."
More than three-quarters of the 574 federally recognized tribes in the country have asked the high court to uphold the law in full, along with tribal organizations. They fear widespread impacts if the court attempts to dismantle the tribes' status as political sovereigns.
Nearly two dozen state attorneys general across the political spectrum filed a brief in support of the law. Some of those states have codified the federal law into their own state laws.
“We disagree on many things,” the brief reads. “But we all agree that ICWA is a critical — and constitutionally valid — framework for managing state-tribal relations, protecting the rights of Indian children, and preventing the unwarranted displacement of Indian children from their families and communities.”
Texas, Louisiana, Indiana and seven individuals have sued over the provisions of the law, though not all are involved in the case before the high court. The lead plaintiffs in the Supreme Court case — Chad and Jennifer Brackeen of Fort Worth, Texas — said the law doesn't have the best interest of children at heart.
“It’s important for people to understand that this is not just a law," Jennifer Brackeen, an anesthesiologist, said in an interview with The Associated Press.
She and her husband, Chad, adopted a Native American child after a prolonged legal fight with the Navajo Nation, one of the two largest Native American tribes, based in the U.S. Southwest. They are trying to adopt the boy’s half-sister, now 4, who has lived with them since infancy. The Navajo Nation has opposed that adoption.
A major problem with the law, Chad Brackeen said, is its lack of flexibility.
“We feel primary consideration is that all children, regardless of race, should be placed in loving forever homes,” Jennifer Brackeen said.
A federal district court in Texas initially sided with the group of plaintiffs in 2018 and struck down much of the Indian Child Welfare Act, ruling it was race-based and unconstitutional.
But in 2019, a three-judge federal appeals court panel voted 2-1 to reverse the district court and uphold the law. The full court then agreed to hear the case and struck down some of the provisions, including preferences for placing Native children with Native adoptive families and in Native foster homes. It also said Congress overstepped its authority by imposing its will on state officials in adoption matters.
But it upheld the determination that the law is based on the political relationship between the tribes and the U.S. government, not race.
The high court has twice taken up cases on the Indian Child Welfare Act before, in 1989 and in 2013, that have stirred immense emotion.
All of the children who have been involved in the current case at one point are enrolled or could be enrolled as Navajo, Cherokee, White Earth Band of Ojibwe and Ysleta del Sur Pueblo. Some of the adoptions have been finalized while some are still being challenged. How those are affected by the Supreme Court case could depend on how the high court rules.
Before the Indian Child Welfare Act was enacted, between 25 percent and 35 percent of Native American children were being taken from their homes and placed with adoptive families, in foster care or in institutions. Most were placed with white families or in boarding schools in attempts to assimilate them.
“They would just swoop in and take our kids,” said Michelle Beaudin, a council member of the Lac Courte Oreilles Tribe in Wisconsin. “And they didn't know their culture, they were just brought into another world. There was no justification for them to come into our communities."
Kate Ford, who represents intervening tribes in the case, said Native American children remain disproportionately represented in the system, but the actual figures vary dramatically by state.
“It’s better than when ICWA was passed, but we still have work to do,” she said in a recent call with reporters.
Beaudin, who was a foster care parent for more than 10 years, adopted her now 22-year-old daughter. She saw great value in ensuring that her daughter stayed connected to both her Ojibwe and Ho-Chunk heritage by passing down traditional skirts and participating in cultural ceremonies.
“That really helped her be confident in who she is and where she came from,” Beaudin said. “She had those pieces of her. If you don't know where you came from and who your people are and what your culture is about, you don't have a sense of belonging anywhere.”