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Informed Citizens

are Better Citizens

by Daryl E. Lucas

In the U.S., adoptions are primarily governed by state law. The adoption of Native American or Alaska Native children, however, is different. Those adoptions are governed by the Indian Child Welfare Act (ICWA), a 1978 federal law that gives tribal governments exclusive jurisdiction over children who are members of one of the 574 federally recognized Native American tribes. ICWA has been challenged many times in the courts, most recently in Brackeen v. Haaland, which the U.S. Supreme Court decided in June 2023.

The Court’s decision

The plaintiffs in Brackeen v. Haaland—a birth mother, foster and adoptive parents, and the State of Texas—challenged ICWA on multiple constitutional grounds, including that the statute exceeds the plenary power of the federal government, violates the 10th Amendment by infringing on states’ rights, and discriminates on the basis of race. In a 7-2 decision, the Court maintained ICWA’s constitutionality.

In the Court’s majority opinion, Justice Amy Coney Barrett wrote, “The bottom line is that we reject all of the petitioners’ challenges to the statute, some on the merits and others for lack of standing.”

Lack of standing refers to who can claim harm from a particular law. A petitioner/plaintiff must prove that they were harmed by a law and that a ruling in the plaintiff’s favor would fix that harm.

About the case

Brackeen v. Haaland consolidated three custody cases, but the main case involved the Brackeen family of Fort Worth, TX. In 2016, Chad and Jennifer Brackeen started fostering a 10-month-old Native American child. The little boy, known in court documents as A.L.M. was born to a Navajo mother and a Cherokee father. He was taken away from his mother due to her issues with substance abuse.

The Brackeens wanted to adopt the little boy, but Navajo social workers had found a tribal couple, not related to A.L.M. in New Mexico that wanted to adopt him. The Brackeens sued and a Texas judge, following guidelines outlined in ICWA, ruled in favor of the tribe. The New Mexico adoption, however, fell through and the Brackeens were able to adopt A.L.M.

In June 2018, A.L.M.’s biological mother had another child, a little girl, known in court documents as Y.R.J. The Brackeens wanted to adopt this child as well; however, the tribe had found a great aunt living on the Navajo reservation in Arizona, who also wanted to raise the child. The Brackeens sued again. In October 2018, a federal judge for the Northern District of Texas struck down ICWA, ruling it unconstitutional because Congress exceeded its authority by ordering a state to apply federal law in a domestic case. In March 2019, a family court judge in Texas agreed that ICWA violated the state’s constitution; however, he ordered the Brackeens and the tribe to share custody of Y.R.J. with primary custody going to the Brackeens. Neither the Brackeens nor the great aunt were satisfied with the ruling.

More on ICWA

Justice Neil Gorsuch, who has been a longtime supporter of tribal rights, wrote a concurring opinion in the case where he outlined the history of ICWA.

“The Indian Child Welfare Act did not emerge from a vacuum. It came as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties,” Justice Gorsuch wrote. “That practice, in turn, was only the latest iteration of a much older policy of removing Indian children from their families—one initially spearheaded by federal officials with the aid of their state counterparts nearly 150 years ago. In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of tribes…”

When introducing the legislation that would become ICWA, then Senator James Abourezk cited a 1976 study conducted by the Association on American Indian Affairs, which revealed that “a minimum of 25% of all Indian children are either in foster homes, adoptive homes, and/or boarding schools, against the best interest of families and Indian communities.”

The report from the study described the processes involved in removing Indian children from their homes and the abuse that occurred. “In the initial determination of parental neglect, the conceptual basis for removing a child from the custody of his/her parents is widely discretionary and the evaluation process involves the imposition of cultural and familial values which are often opposed to values held by the Indian family,” the report stated. “Second, assuming that there is a real need to remove the child from its natural parents, children are all too frequently placed in non-Indian homes, thereby depriving the child of his or her tribal and cultural heritage.”

According to the study, 85% of the Indian children removed from their tribal homes were adopted by non-Indian families, usually white Christians. ICWA established a set of procedures and guidelines that must be followed when a case involves American Indian or Alaska Native children. The law states that preferences for adoption placements of Native American children should be in this order: a member of the child’s extended family; other members of the Indian child’s tribe; a family from another tribe; and finally non-Indians.

Michael Sliger, a professor who teaches a course on federal Indian law at Cornell Law School, points out that ICWA was a means of protecting Indian children, by keeping them with friends or relatives. If there was a child custody case involving an Indian child, jurisdiction in that case falls to tribal governments and their agencies to determine the best custodian for the child.

“The law has a good track record,” Professor Sliger says. “It has assisted in keeping children with their families and within their society. Alienation and removal from their culture often do more harm than good as we have seen with the boarding school policies that didn’t officially end until the 1980s.”

Indeed, over the years the law has been upheld as an example of adoption best practices. Adoption agencies and child welfare organizations consider ICWA’s goal of reunification with a Native American child’s tribe to be the gold standard and essential to the definition of “the best interests of the child.” More than two dozen child welfare organizations, as well as the American Bar Association and the American Civil Liberties Union, filed amicus briefs supporting ICWA. According to the National Indian Child Welfare Association, 10 states—California, Oregon, Washington, Iowa, Minnesota, Michigan, Nebraska, New Mexico, Wisconsin and Oklahoma—passed laws that codify the federal protections outlined under ICWA into state law.

The stakes

There was more at stake in Brackeen v. Haaland than just the adoption of Native American children. The question of tribal sovereignty was also at stake. If the U.S. Supreme Court had ruled that Congress exceeded its authority in passing ICWA, or that the statute discriminated on the basis of race, then other laws such as ones protecting Native American land, water, and gambling, could have been in jeopardy.

“It would put at risk every treaty, every property and political right and every power that Indian nations possess today,” Robert Miller, a professor of federal Indian law at Arizona State University and a tribal court judge, told The New York Times. “All of a sudden, lands would be owned by ‘a race of Indian people,’ not a tribal government. Your borders, your police laws, everything on the reservation would be in question.”

Professor Sliger explains that in their petition to the Court, the Brackeens claimed that ICWA dictates a preference for American Indian and Alaska Native children to be placed with only their people, thus the law is racially discriminatory. This would be the case, Professor Sliger explains, if “Indian” were a racial category—an important distinction. It is well documented that “Indian” pertains to a political and legal identity, he says.

“It is a legal term not a racial category,” Professor Sliger says. “It has been a legal term for a very long time, since the founders recognized that Indians were numerous and separate sovereign peoples.”

In fact, Justice Gorsuch refers to this distinction as well, calling it a “bedrock principle” and invoking Morton v. Mancari, a 1974 case that ruled regulations benefiting tribes are not unconstitutionally race-based because Indian status is a “political rather than racial classification.”

On this part of the plaintiffs’ claims, the Court ruled they lacked standing because the claim of equal protection in this case was directed at federal officials.

Justice Barrett wrote, “Enjoining [charging] the federal parties would not remedy the alleged injury, because state courts apply the placement preferences, and state agencies carry out the court-ordered placements.”

As to exceeding its authority, Professor Sliger says that Congress’s powers are broad, especially with regard to Indian laws and matters related to Indian territories. Again, he says that is why it is important to remember that “Indian” and “Indian Country” are legal terms used by the authors of the U.S. Constitution to establish Indians as a political identity.

“The plenary power of Congress means it can make laws regulating anything within the scope of congressional power,” Professor Sliger says. “In this case, it has the right to make laws and regulate anything outlined by the Indian Commerce Clause.”

Professor Sliger notes that the Court did not rule on the plaintiffs’ claim that ICWA violated the equal protection clause of the U.S. Constitution because of a lack of standing, so basically a technicality. He points out that the two dissenting opinions of the Court—written by Justice Clarence Thomas and Justice Samuel Alito—noted this challenge could be brought at another time.

In the final paragraph of his concurring opinion, Justice Gorsuch explains why Native Americans are unique.

“Our Constitution reserves for the tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it. And it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building a lasting peace,” Justice Neil Gorsuch wrote. “In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.”

Discussion Questions

  1. What do you think of ICWA’s order of adoption placements? Should there be other criteria for determining placements? If so, what? Explain your answer.
  2. The 1976 report mentioned in the article stated that the evaluation process for removal from a tribal home imposed “cultural and familial values which are often opposed to values held by the Indian family.” Do you think a child, if possible, should stay with a family from their culture? Explain your answer.

Glossary Words
amicus brief
—a friend of the court brief, which is submitted by an entity with strong interests in a case but not a party in the case.
concurring opinion — a separate opinion delivered by one or more justices or judges that agrees with the decision of the court but not for the same reasons.
jurisdiction — authority to interpret or apply the law.
majority opinion — a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
plenary power—absolute power to take action on a particular issue with no limitations.
sovereignty — supremacy of authority over a defined area or population.
statute — legislation that has been signed into law.

This article originally appeared in the fall 2023 issue of Respect, NJSBF’s diversity & inclusion newsletter.