Texas case could change adoption rules for Native American children, and undercut tribal rights

The Supreme Court in Washington, D.C., in 2021. (Eric Lee For The Texas Tribune, Eric Lee For The Texas Tribune)

Jennifer and Chad Brackeen, an anesthesiologist and a stay-at-home dad, already had two biological children when they decided to foster a child. “God started to speak to our hearts about opening our home for more,” Jennifer explained in a now-defunct blog.

The Evangelical Christian couple in Fort Worth began caring for a 10-month-old boy in 2016, and the next year, decided they wanted to adopt him.

But the boy was of Navajo and Cherokee descent, and attempting to add him to their family brought the Brackeens up against the fraught legal, cultural and emotional dynamics of adopting Native American children in a country with a long history of victimizing and destroying American Indian families.

Under the 1978 federal Indian Child Welfare Act, preference had to be given to the boy’s family, and then his tribe, before a white family like the Brackeens could adopt him. The law aims to preserve Native communities and Native children’s sense of belonging to them.

When a Texas family court judge ruled in 2017 that the boy should be placed with a Navajo nonrelative in New Mexico, the Brackeens were dismayed. “We felt this would do real, emotional harm to him,” Brackeen wrote on her blog, saying that her family offered the boy access to their culture, one “that he would not have had in his biological family.”

The Brackeens were ultimately able to adopt the boy; the papers were finalized in January 2018. Still, Jennifer wrote on her blog that “the passion we have to amend this law remains. It is destroying the hearts of children across the country every day. And it is devastating them.”

A partner at Gibson Dunn, a global law firm with clients like Chevron and Google, agreed to represent the family pro bono in a suit to challenge the constitutionality of ICWA. The Brackeens’ relatively minor family court dispute snowballed into a Supreme Court case that could upend the entirety of federal Indian law, with enormous implications for Native children and families across the country — and for their tribes.

The U.S. Supreme Court heard oral arguments Wednesday in Brackeen v. Haaland. The Brackeens’ suit was joined by several other adoptive and potential adoptive families and the states of Texas, Indiana and Louisiana, and has wound through the courts since it was filed in 2017.

“ICWA coerces state agencies and courts to carry out unconstitutional and illegal federal policy,” Attorney General Ken Paxton has said about the law, “and decide custody based on race.”

The law's restrictions place unnecessary barriers between Native American children, who are disproportionately represented in the foster care system, and loving adoptive homes, its challengers say. “Knowing the difficulties that await them if they attempt to adopt a Native child, many couples simply turn elsewhere at the outset," Paxton said in a statement.

Sarah Kastelic, the executive director of the National Indian Child Welfare Association, which helps tribes, states, caseworkers and families understand and comply with ICWA, says that the boy the Brackeens adopted, like other Native children, is entitled to his own heritage.

“One of the recurring requests that we get is adult adoptees who are calling us to say, ‘I know I’m Indian. I don’t know who my family is. I have a tiny bit of information about where my mother was born or about a last name.’ And, you know, it’s a detective case here, like, how can I find my family? How can I find my way back?”

When adoption is held up, particularly in religious communities, as a call from God, Kastelic says the needs and feelings of adoptive parents often take center stage, sidelining those of the other parts of the “adoption triad” — the children themselves and the families they come from.

“For a long time,” Kastelic said, “Non-Native people have been trying to ‘save’ Native children who don’t need saving.”

The Supreme Court of the United States, Washington, Organizers and activists rally as Supreme Court hears a case that challenges the legality of the Indian Child Welfare Act, which prioritizes the placement of Native American children in foster care or adoption with relatives, other tribal members, or in other Native homes on Wednesday, November 9, 2022.

A flag flies outside the Supreme Court on Wednesday as arguments were heard challenging the constitutionality of the Indian Child Welfare Act. Credit: Shuran Huang for The Texas Tribune

History of forced removals

The Indian Child Welfare Act is part of a long and brutal history between the United States government and Native tribes. The forced removal of Native Americans from their lands, brought about by the Indian Removal Act of 1830, led to the deaths of thousands of Natives. In the late 1800s, the Carlisle Indian Industrial School, founded by Henry Pratt, became the model for assimilation of Native children into American society; more than 50 such schools proliferated around the country. Pratt’s famous motto, “Kill the Indian, save the man,” encapsulated the theory behind the schools, which took Native children far from their families and tribes, forced them to speak English and practice Christianity, and forbade them to grow their hair or wear their traditional clothes.

It’s now clear that Indian boarding schools were sites of rampant abuse and deaths of Native children. A report commissioned by U.S. Interior Secretary Deb Haaland found at least 500 deaths took place in the schools; that investigation is still underway. In Canada, which had its own residential school program, more than a thousand unmarked graves of Native children have been found at the school sites.

In the 1950s and ’60s, as the American Indian boarding schools fell out of favor, a new wave of assimilation policy went into effect: adoption of Native children into white homes. The Indian Adoption Project, which ran from 1958-67, was a partnership between the federal government and the Child Welfare League of America and churches around the country whose stated goal was the adoption of Native children by white families. At the time, “matching” of adoptive children with their adoptive parents was a common practice, meant to allow adoptive parents to pass their children off as biologically related. “One little, two little, three little Indians — and 206 more — are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken the Indian waifs as their own,” a 1966 Bureau of Indian Affairs press release boasted.

By the 1970s, the removal of Native children to white families was so widespread that, when the BIA commissioned a federal task force to research the phenomenon, it found that 25% to 35% of Native children around the country were removed from their homes, and 85% of those children were adopted by white families. ICWA was created in response to the report, and Congress passed the law in 1978.

“This is not ancient history. This is within our lifetimes,” Kastelic said. “This is part of that systematic assimilation policy, the whole range of federal policies that the federal government put in place. … It’s just the assimilation happening through a different system now.”

Chuck Hoskin Jr., the chief of the Cherokee Nation, said that protecting the tribe’s children is important to the future of its people. “The upcoming generation is probably the most precious resource because it’s literally the future of a society or a group,” Hoskin said. “In our case, the Cherokee people, we’ve seen a great deal of trauma and obstacles and tragedies over the generations that very nearly wiped us out. And so I think there’s a, perhaps, a special sense that every generation coming up is a hope that we continue on and prosper.”

The Supreme Court of the United States, Washington, DC - Organizers and activists rally as Supreme Court hears a case that challenges the legality of the Indian Child Welfare Act, which prioritizes the placement of Native American children in foster care or adoption with relatives, other tribal members, or in other Native homes on Wednesday, November 9, 2022.

The Supreme Court of the United States, Washington, DC - Organizers and activists rally as Supreme Court hears a case that challenges the legality of the Indian Child Welfare Act, which prioritizes the placement of Native American children in foster care or adoption with relatives, other tribal members, or in other Native homes on Wednesday, November 9, 2022. Credit: For The Texas Tribune

The Supreme Court of the United States, Washington, DC - Organizers and activists rally as Supreme Court hears a case that challenges the legality of the Indian Child Welfare Act, which prioritizes the placement of Native American children in foster care or adoption with relatives, other tribal members, or in other Native homes on Wednesday, November 9, 2022.

The Supreme Court of the United States, Washington, DC - Organizers and activists rally as Supreme Court hears a case that challenges the legality of the Indian Child Welfare Act, which prioritizes the placement of Native American children in foster care or adoption with relatives, other tribal members, or in other Native homes on Wednesday, November 9, 2022. Credit: For The Texas Tribune

First: The crowd listens to organizers speak during a rally outside the Supreme Court. Last: A pair of child-size moccasins are put on display during a demonstration in support of the Indian Child Welfare Act on Wednesday. Credit: Shuran Huang for The Texas Tribune

The “gold standard”

Jasmine Grika was in first grade when she was removed from her mother for the first time. Grika, who is Cheyenne River Sioux and Red Lake Band of Ojibwe, was born in 1990 and grew up off reservation in Minneapolis. Her mother struggled with a chemical dependency, and Grika worried about her endlessly when she was in her first foster home. She lived with a white family, whose biological kids were given seats at the kitchen table, while the foster kids, other children of color, ate in a different room, she says. At night, the foster family would sit on the couches to watch TV while Grika and her foster siblings sat on the floor.

It wasn’t until she was fostered by a Native couple that she was made aware of what was going on with her case. “They were transparent about the process from the very beginning, saying, ‘We’re here to provide you the safe place and the care and love while Mom tries to get better,’” Grika remembers now.

Grika’s mother had been adopted by a white family and was so disconnected from her heritage that Grika wasn’t even aware that she was Native. When her mother didn’t get better, Grika was adopted by another family, an Ojibwe woman and her Jewish husband. Grika’s adopted mom, it turned out, was also adopted by a white family, and she made it a priority to introduce Grika to her heritage. She signed Grika up for a Native kids’ club, and introduced her to a spiritual adviser who gifted her a jingle dress, a traditional ceremonial outfit. She wore it to a powwow where she was welcomed back into the community.

“I had my first dance in my jingle dress when I was 10 years old, and we have that picture of me in my jingle dress with the biggest smile,” Grika says.

Grika’s experience, in which her birth mother and her adoptive mother were both adopted by white families, is not uncommon. “It’s just such a widespread, prevalent experience in Native communities,” Kastelic said. “And we know, I mean, this is the insidious part: We know that the goal of federal Indian policy was to sever that connection, that was absolutely intentional. And so you know, what we see every day are the consequences of that.”

Native children are still overrepresented in the U.S. foster care system. In South Dakota, Native children make up 12% of the child population but more than half of the children in the state’s child welfare system. The provisions of ICWA are intended to provide additional protections to Native children who end up in the child welfare system.

One provision allows tribes to enter as a party in a Native child’s case, and sometimes even to transfer the child’s case to tribal court. Another gives placement preference first to the child’s family, then to their tribe, and then to other Native tribes before opening the child up to other options. One key aspect requires that child welfare officials make “active efforts” (as opposed to “reasonable efforts,” the standard in most child welfare cases) to reunite Native children with their families.

Kastelic says those active efforts could include making sure that needed parenting classes are culturally appropriate and making sure they’re easily accessible to parents. If a parent needs a bus pass to be able to make it, for instance, “active efforts” would dictate caseworkers going that extra mile to provide one.

That may seem relatively minor, but the child welfare system overall is incredibly bureaucratic, advocates say, and service plans — which parents are required to complete in order to reunify with their children — often more closely resemble punishment charts than supports aimed at helping struggling parents, advocates say. For instance, parents are often required to complete a laundry list of services, even some that don’t pertain to the issue the parent is struggling with. Weekly drug tests at clinics that could be hard to get to, in addition to classes and other in-person services, can be difficult for parents without easy access to transportation. And, at least in Texas, not fully completing a service plan is grounds for termination of parental rights.

In fact, the provisions of ICWA are widely considered to be the “gold standard” across the child welfare industry. An amicus brief in the Brackeen case, filed by Casey Family Programs and more than two dozen other leading child welfare and adoption organizations, points to the “decades of research” that children do best when they stay with, or close to, their families: “Experts now agree on one overriding and universally applicable principle: Children are best served by preserving and strengthening their family and community relationships to the fullest degree that safety allows.”

More than 20 states signed on to a brief in support of ICWA, and 10 states, including those with high Native populations like New Mexico and Oklahoma, have codified ICWA or similar provisions into state law.

“Children need their families. They do,” Kastelic said. “Even if they don’t have perfect families — and no family is perfect.”

The Supreme Court of the United States, Washington, DC - Organizers and activists rally as Supreme Court hears a case that challenges the legality of the Indian Child Welfare Act, which prioritizes the placement of Native American children in foster care or adoption with relatives, other tribal members, or in other Native homes on Wednesday, November 9, 2022.

Organizers and activists rally Wednesday as the U.S. Supreme Court hears a case that challenges the legality of the Indian Child Welfare Act. Credit: Shuran Huang for The Texas Tribune

Potential for widespread consequences

The Supreme Court heard several lines of argument relating to the constitutionality of ICWA on Wednesday. The argument with the greatest potential to undercut the law was one cited by Paxton in 2019 after the original district court judge ruled that ICWA was unconstitutional — that the law is impermissibly based on race.

The tribes argue that their relationship with the United States is a political, and not a racial, one. Mandating a placement preference for Black adoptive children with Black families, for instance, might be ruled unconstitutional, but tribes and their supporters argue the standard is different for Native children.

Tribes have more than 200 years of legal history, including treaties and other major precedent-setting cases, that have outlined and codified this political relationship with the federal government, says Kate Fort, who runs the Indian Law Clinic at Michigan State University and represents the defending tribes.

Because Native tribes have sovereignty over their citizens and an established interest in the well-being of their children, the question of how to weigh a Native child’s cultural lineage in child welfare proceedings is different than for children of other races that don’t have that legal history, U.S. Justice Department attorneys argued to the court.

“This court is now looking at the question of whether being a tribal citizen is a racial classification, and if so, that could render ICWA unconstitutional under equal protection grounds,” Fort said. “It could also cause real problems for essentially all of Title 25 of the U.S. Code, which is the section of law that governs Indians and Indian tribes.”

If the high court finds that ICWA is unconstitutional because it’s a race-based law, Native leaders fear that would open the floodgates to challenges of many other key laws that their citizens rely on.

Hoskin said the ICWA challenge is “part of a broader attack” on laws governing the federal relationship with Native tribes and that a decision that ICWA constitutes a racial preference could make other federally mandated programs, like the provision of health care for Native people, vulnerable. “That’s the great worry that many of us have is that if we lose ICWA, it’s detrimental — but it’s also something that could erode the strength of these legal principles that underpin so much of what we need in Indian country to make progress.”

Justice Neil Gorsuch seemed to underline that reasoning during Wednesday’s oral arguments, when he told Texas Solicitor General Judd Stone that if Texas’ argument was effective, “there’ll be a lot that would be bitten out of Title 25. We’d be busy for the next many years striking things down.”

Other justices, including Brett Kavanaugh and Amy Coney Barrett, asked questions relating to the racial designation argument, drilling down on the placement preferences that could allow for a tribe not affiliated with a specific child to get preference over a non-Native foster placement. There were multiple hypothetical questions about what might happen in specific situations with placement decisions; Deputy U.S. Solicitor General Edwin Kneedler pointed out that family law has incorporated ICWA into its daily decision-making for decades and that each child welfare case is decided on a specific set of facts.

Other justices seemed skeptical of the race-based argument. Justice Sonia Sotomayor asked attorneys for the plaintiffs if ICWA was not more similar to the section of the Hague Convention dealing with international child abduction, a treaty aimed at preventing unnecessary removal of children from their homelands and involving separate sovereign nations.

In Brackeen, the Supreme Court could also make a much more specific ruling, Fort says, having to do with certain provisions of ICWA overstepping the boundaries between the federal and state governments. If the ruling were more limited, some advocates say that states could beef up their own ICWA protections, and the federal government might be able to tie additional federal funding to the implementation of certain key provisions, a practice that already broadly exists in child welfare provisions around the country.

“Regardless of what the U.S. Supreme Court says when they decide this case, tribes can’t lose their inherent sovereignty over their children and families,” Fort says. “They’ll continue to fight to protect those children and families.”

The three states arguing that ICWA is unconstitutional — Texas, Louisiana and Indiana — have relatively few Native residents. But Fort says Texas has not typically had much of an issue following the provisions of ICWA.

“In the case of the Brackeens, the agency followed ICWA and tried to get the child placed with the Navajo family, and it has ICWA in their policy manuals,” Fort said. “I really think that Texas gets such a bad rap because they have very specific political leaders pushing very specific lawsuits, and this is one of them.”

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