In Brackeen v. Haaland, white adoptive parents argue they were discriminated against; Indigenous rights’ leaders say the sovereignty of tribes is at stake
As the Canadian government pays out billions of dollars in reparations to Indigenous families torn apart by foster care, a case up for consideration by the U.S. Supreme Court threatens to strip legal protections from U.S.-born Native American children, families and tribal communities.
At stake in the Brackeen v. Haaland case is the 1978 Indian Child Welfare Act, bedrock legislation passed to combat cultural genocide and the devastating history of Native children forcibly sent to boarding schools and the homes of white adoptive families. Modeled after other treaty obligations between tribal nations, the law known as ICWA requires the foster care system to take extra measures before separating Indigenous children from their families and tribes.
The Supreme Court may soon decide whether that law is constitutional. If it is struck down, there could be dire impacts on Native communities. Even with the added legal protection of ICWA, America’s Indigenous children are three times more likely to be taken into foster care than white children, according to federal statistics.
“We fear the possibility of returning to a pre-ICWA environment where Native children and families are removed in even larger numbers than they are now, with even fewer protections and little recourse for them or their families,” Sarah Kastelic, executive director of the Oregon-based National Indian Child Welfare Association wrote in an op-ed for The Imprint after an earlier ruling.
In the case now before the Supreme Court, the state of Texas and a white, evangelical Fort Worth couple, Jennifer and Chad Brackeen, challenge the constitutionality of the 1978 law, saying it grants preferential treatment based on race.
The Brackeens argue that ICWA challenged their right to adopt a Navajo toddler from foster care by discriminating against them because they are white and non-Native, a violation of their rights as foster parents under the 14th Amendment and laws guaranteeing protection from racial discrimination. While Texas is a petitioner in the Brackeen’s case, plaintiffs include the states of Indiana and Louisiana, as well as two other white families who’ve fostered or adopted Native children.
The Brackeens are backed by a powerhouse legal team with interests in their case that appear to go far beyond one family’s right to adopt, taking aim at the very right of tribal nations to exist. The Gibson Dunn law firm has brought several other cases against ICWA, and has pursued the Brackeen case even after the couple was granted the right to adopt the Navajo boy, who is known as “A.L.M.” in court documents.
The Brackeens and their lawyers did not respond to requests for comment by The Imprint.
But in 2019, the Texas state attorney general’s office posted a YouTube video titled “Meet the Brackeen Family” In the video — an unusual post about a private family’s adoption case by a top prosecutor in a rough-and-tumble Republican state — Chad Brackeen describes turning to foster care as “a calling from God.”
In the interview with Ken Paxton, a Republican who has been Attorney General since 2015, Chad Brackeen said he and his wife were blocked from adopting the Navajo boy because the Indian Child Welfare Act “said the Natives had the ultimate say as to what his placement will be.”
The couple said taking the boy from his loving home of a year would disrupt his attachment to the Brackeen family — something they view as more devastating than his separation from tribe, language, culture and kin. The Brackeens are pursuing the case even after a lower court granted the adoption, to help other families like them, they said.
The ‘Gold Standard’ of child welfare law
In briefs filed in opposition to the Brackeen case, A.L.M.’s Navajo Nation and three other tribes denounce the effort to overturn ICWA. Their supporters are numerous. By last count, 25 states and the District of Columbia, 180 tribes, 35 Native American organizations and 10 child welfare and adoption agencies and the influential Casey Family Programs have filed amicus briefs opposing the legal challenge. Just one state so far has filed an amicus brief to the Supreme Court critical of ICWA.
In a statement last month, Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Charles Martin, Oneida Nation Chairman Tehassi Hill, and Quinault Indian Nation President Guy Capoeman described ICWA as “lauded by child advocates as the gold standard in child welfare,” a law upheld by courts for more than four decades.
“Yet we continue to see opponents challenge the law in order to undermine its crucial protections for Indian children in the adoption and foster care system,” the tribal chiefs wrote. “We fight for ICWA because we know the importance of keeping our children connected to their families, tribal communities, and heritage. The Indian Child Welfare Act has been defended by both Republican and Democratic administrations. It is a fundamental, non-partisan law and we look forward to the Supreme Court once again upholding its constitutionality.”
U.S. courts have repeatedly affirmed that the 1978 law is not based on race, but on the rights of tribes as political entities and sovereign nations. The backdrop of the argument is the unique relationship and treaty relations between tribes and the U.S. government, agreements that require the federal government to uphold the rights of tribal children who come into foster care. The law came about in response to forced assimilation and family separation that threatened tribal people throughout the 19th and 20th centuries.
Supporters of ICWA argue the best interest of American Indian children is maintaining strong connections to their cultural roots, whether that means reuniting with their birth parents or moving in with relatives or other tribal families. Those ties are essential, they say, to maintaining children’s mental, physical and spiritual well-being.
Interior Secretary Deb Haaland, the first Indigenous woman to serve as a U.S. cabinet secretary, became the named defendant in the Brackeen case upon being confirmed to her position by President Joe Biden.
Haaland, an enrolled member of the Laguna Pueblo tribe, has been outspoken on Indigenous rights since her first days in office. She has ordered a federal investigation into Indian boarding schools, launched a search for unmarked graves like the thousands found recently in Canada, and even declared the word “squaw” a derogatory term, ordering replacement names for hundreds of valleys, lakes and creeks.
What’s behind the Brackeen case
In her yearslong investigation for the podcast “This Land,” Cherokee journalist Rebecca Nagle revealed deep ties between the Brackeens’ legal team and interests that went well beyond child welfare — a far larger network working to diminish tribes’ rights as sovereign nations.
Their legal support comes from interests far removed from an otherwise run-of-the-mill family law case, including the conservative Goldwater Institute think tank, corporate lawyers whose firm represents global corporations including Walmart, Chevron and Amazon and the gaming industry. Attorneys on the Brackeen legal team have argued “reverse discrimination” in numerous previous cases involving affirmative action, voting rights and racial integration programs such as school busing, “This Land” revealed.
Nagle’s reporting team also found a money trail funding the legal strategy that aimed to take down ICWA, one she described as ultimately aiming not for child welfare systems but a far larger gain. In an October interview with The Imprint Weekly, Nagle described how much is at stake if ICWA is struck down by the highest court as race-based discrimination — everything from gaming on tribal land to Indian health care systems, hunting and fishing rights.
“ICWA is the first in a series of dominoes,” she said. “This lawsuit is about way more than the children. The case has become a Trojan horse.”
For now, all eyes on ICWA
According to surveys conducted in 1969 and 1974 by the Association on American Indian Affairs, as many as 35% of Indigenous children were permanently removed from their families by the federal government and child welfare agencies, the brutal aftermath of genocidal practices over centuries. ICWA became law at a time when at least 1 in 4 Native children were being taken into foster care.
The Canadian government has confronted a similarly tortuous past, pledging to pay First Nations children and families $31.5 billion in compensation for harm caused by three decades of wrongful foster care separations. Canada has similarly revealed more than a thousand unmarked graves of children on former Indian boarding school sites.
ICWA was this country’s attempt to begin repair of the generational harm it inflicted on Indigenous communities. It stipulates that tribes have standing in foster care cases involving their children, and must be notified and included in children’s legal proceedings.
If an Indigenous child is removed from their parents following allegations of neglect or abuse, officials must give first preference to tribes and prioritize a placement with the Indigenous child’s relatives or another Native family.
It also requires local agencies to provide what is called “active efforts” to support family reunification, a standard that is higher than in most child welfare cases, which require only “reasonable” efforts. Active efforts in ICWA cases include providing parents with drug and alcohol treatment, counseling, domestic violence prevention as well as practical, basic items they may need such as diapers or money for electricity bills. This practice of active efforts is what led to ICWA being widely considered “the gold standard” in child welfare.
ICWA is not always adhered to in courts across the country, and there’s no national tracking of compliance. It is supposed to apply in all cases involving children who are enrolled or eligible for enrollment in tribes. Those fighting the Brackeen case argue an ICWA case is based on a child’s citizenship of a sovereign nation — a political designation — not a racial category.
White ‘discrimination’ affirmed in lower courts
The Brackeen case has had a tangled legal pathway through the courts.
In 2017, Chad and Jennifer Brackeen — together with state attorneys general in Texas, Louisiana and Indiana — sued the U.S. Department of the Interior and former Secretary Ryan Zinke to challenge ICWA on grounds that the law was race-based and therefore made it harder for the couple to adopt the Navajo child they had been fostering.
U.S. District Judge Reed O’Connor, a President George W. Bush-appointee writing for the Northern District of Texas court, agreed ICWA was a race-based law. He also ruled that it violated constitutional protection from “commandeering,” which prevents the federal government from forcing states to enforce federal law.
Two years later, the Fifth Circuit Court of Appeals reaffirmed ICWA in Texas, Louisiana and Mississippi as constitutional.
But the plaintiffs requested the case be heard by the full appellate court panel of justices. And in April 2021, the Fifth Circuit ruled again. In a complicated and divided 325-page opinion, the justices upheld important aspects of ICWA, but agreed to strike several key provisions, most significantly the “active efforts” requirement.
The court deadlocked on the ICWA provision requiring that extended relatives and members of the child’s tribe be considered “preferential placements.” And it ruled unconstitutional the ICWA requirement that a “qualified expert witness” testify when child welfare agencies seek to place Indigenous children into foster care, or to terminate their parents’ rights.
The U.S. Supreme Court is currently considering a review of that Fifth Circuit decision.
If ICWA is upheld in Brackeen, the federal law will remain in place.
If some parts or the entirety of ICWA is found to be unconstitutional by the Supreme Court, the impact would be far-reaching.
Misty Flowers, a member of the Santee Sioux Nation of Nebraska and executive director of the Nebraska Indian Child Welfare Coalition, said “it is quite scary to think about what would happen to our Indigenous families if ICWA no longer existed.”
But Flowers said she takes solace in the many defenders of the landmark law.“This is not the first time that ICWA has been challenged and attacked and this isn’t going to be the last time either,” she said. “But the thing is, we can all come together and be united. I can sleep better at night knowing that we have amazing people that are out there and we have tribes that are banding together.”