A date has been set for the Supreme Court to consider the most significant legal challenge to Native American families in generations. Oral arguments begin Nov. 9 in Brackeen v. Haaland — a case which aims to overturn the historic federal law known as the Indian Child Welfare Act, or ICWA.
Chad and Jennifer Brackeen, a white, evangelical couple from Fort Worth, Texas, are backed by a high-powered legal team in their battle over the adoption of a Navajo boy and his sister.
The couple wants the nation’s highest court to decide if ICWA — which prioritizes keeping American Indian children who enter foster care with their families and tribal communities — violates equal protection laws and has discriminated against them because they are white. They want ICWA overturned so other white adoptive couples can more easily adopt Indigenous children from foster care.
States including Texas, Indiana, Louisiana, and more recently Oklahoma and Ohio have sided with the Brackeens in court filings. Some proponents of the Brackeens argue that ICWA’s “active efforts” standards — which require social workers to take additional steps to ensure an Indigenous family has every opportunity and resource available to remain together — is too much of a burden on states. When child welfare agencies serve non-Indigenous families, agencies are bound to a lesser standard of “reasonable efforts” to ensure that all steps are taken to keep kids home with their families.
More than 25 states and Washington, D.C., oppose the challenge to ICWA, along with 180 tribes and 35 Indigenous organizations who have filed amicus briefs with the Supreme Court to date. They argue that the 1978 law — passed in response to centuries of forced assimilation, brutality and oppression — is not based on race, but on the treaty relationship between tribes as sovereign political entities and the U.S. government..
In an interview after the Supreme Court date was set yesterday, Claudette Grinnell-Davis, a social work professor at the University of Oklahoma, highlighted the expansive stakes of the Brackeen case.
“Protecting children in state courts is a fundamental act of external sovereignty for tribes. Active efforts and qualified expert witnesses are core vehicles to do that,” Grinnell-Davis told The Imprint. “If tribes no longer have the right to protect their citizens, or have the tools taken away that are important in that protection, other acts of external sovereignty such as environmental and cultural protections, mineral rights and gaming contracts will be challenged next, and sovereignty will be sovereignty in name only.”
ICWA was originally enacted with the express intention to keep history from repeating itself during a time when, according to studies in 1969 and 1974 by the Association of American Indian Affairs, 25% to 35% of American Indian children were taken from their homes and families and put in either government-run institutions, or foster or adoptive homes. Ninety percent of those removals were into non-Indigenous homes.
Native American rights activists, youth advocates and child welfare experts tout ICWA as not just “the gold standard” in child welfare practice and policy, but a necessary tenet to Federal Indian Law in that it has helped protect Indigenous families from family separation and cultural genocide. The forced removal of children to non-Native homes and boarding schools was central to the government’s failed attempts to strip Indigenous people of their culture and languages, in order to indoctrinate them with Western ideals.
Before ICWA became federal law, between 75% and 85% of Indigenous families who lived on a reservation had at least one of their children taken into foster care, according to Montana’s Department of Public Health and Human Services.
The multigenerational impacts of colonization are still far-reaching today. Last month, Interior Secretary Deb Haaland launched a national listening tour in Oklahoma, where many survivors of local boarding schools and foster care recounted living with the devastating and lingering trauma of their forced family separation.
Access to the audio and transcripts from the oral arguments in the Brackeen case proceedings can be found on the Supreme Court’s website.