When justices take up Haaland v. Brackeen, they’ll be asked to consider the fate of the Indian Child Welfare Act (ICWA). The law is designed to keep Native children in their families and communities in case they are placed in the child welfare system. In part, the law gives Native families preference when fostering or adopting Native children.
Two of the plaintiffs, Chad and Jennifer Brackeen, argue that preference is racially discriminatory. The Brackeens are a non-Native Fort Worth-area couple who adopted one boy with Navajo and Cherokee parents, and are trying to adopt his sister, according to court documents.
But experts in Indian law say that argument is like insisting “French” is a racial category. If the Supreme Court agrees with the Brackeens, it will go against hundreds of years of precedent of the federal government dealing with tribes as sovereign nations, said Dan Lewerenz, a law professor at the University of North Dakota, an attorney at the Native American Rights Fund and a member of the Iowa Tribe of Kansas and Nebraska.
"If the court says tribes are merely a racial group, and that a membership in a federally recognized tribe is a racial category, then literally everything tribes do as self-governing communities is now constitutionally questionable," he said.
Congress passed ICWA in 1978 as a response to the child welfare system’s overt discrimination against Native families. State and private agencies were removing a staggering number of Native children from their homes: as many as 25% to 35% of all Native children, according to the Bureau of Indian Affairs. Many were placed in non-Native homes. The practice echoed assimilation practices like moving Native children to boarding schools.
Often, there was no evidence of abuse or neglect that could be considered grounds for removal. One excuse the government used to take Native children away was poverty, said Angelique EagleWoman, director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law and a citizen of the Sisseton Wahpeton Oyate.
"The reason American Indians were in poverty was because of U.S. government policies,” EagleWoman said. “So it was a no-win cycle for families to have their children removed by state social workers and then placed into state or private adoptions into white homes."
ICWA is fundamental to making sure Native children can grow up in Native communities, EagleWoman said.
“Any change to the interpretation or implementation of the Indian Child Welfare Act would signal a return to the genocidal policies of the United States,” EagleWoman said. “This is a remedial statute meant to protect tribal children from losing all connection to who they are."
Chad and Jennifer Brackeen have argued that their adopted son and his sister should stay with them because their home is the one the children know best. Chad Brackeen repeated that in a recent appearance on Fox News.
“These two siblings belong together. They are close in age. They can support each other. They are living in the only town that they've ever known, near the families that they have in the area to love and support each other,” Chad said. “We feel that a move at this point to break those bonds that have developed over time would be detrimental to her and would also be detrimental to our son.”
The child welfare system is not “first come, first serve,” said David Simmons, the director of government affairs and advocacy for the National Indian Child Welfare Association. Fostering children is supposed to be about helping child welfare agencies as they try to help rehabilitate those children’s parents, he said.
“I know that there are a large number of people who are looking to adopt, that have a strong goal to do that, and that's fine, but the public child welfare system is not the place to be pursuing adoptions just to meet your interests as a family," he said.
Native children are still removed from their homes at disproportionate rates, but ICWA has helped, Simmons said.
"If we didn't have an Indian Child Welfare Act, we probably would continue to see these large, large numbers being removed,” Simmons said. “We’d continue to see kids being disconnected from their culture, from their families, their extended families."
Simmons called ICWA the “gold standard” of child welfare practice. In lower courts, 486 federally recognized American Indian and Alaska Native Tribes, and dozens more Native organizations, voiced support for ICWA.
The Supreme Court is expected to make a decision in Haaland v. Brackeen by the end of June 2023.
Got a tip? Email Miranda Suarez at msuarez@kera.org. You can follow Miranda on Twitter @MirandaRSuarez.
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