Indian Child Welfare case could have a larger impact on U.S. relationship with tribes

The premise of Brackeen against Haaland namely that the Indian Child Welfare Act is a race-based law that violates the rights of non-native parents by excluding them from adopting indigenous children.

Commonly known as ICWA, the Indian Child Welfare Act was passed in 1978 during the boarding school era when thousands of indigenous children were taken from their parents and placed with non-indigenous foster parents or federal boarding schools.

It is an attempt to assimilate children and eliminate Indigenous language, traditions and culture.

David Simmons, a policy expert with the National Indian Child Welfare Association, said that policies within the Bureau of Indian Affairs have left Native families teetering on the brink of extinction.

“25% to 35% of all Indigenous children are estimated to be removed and placed in some type of out-of-home care, whether it’s foster care or institutional care,” Simmons said.

So, Congress passed ICWA to prevent so-called cultural genocide. The law says that when an indigenous child is removed from his parents’ home for any reason, every effort must be made to place the child with an indigenous relative. If relatives are not available, efforts should be made to place the child with another indigenous family. If those options are exhausted, they can be placed with non-native adoptive families.

Some have called ICWA the ‘gold standard’ in child welfare because of the effort it takes to keep children connected to their heritage, but it is not without controversy. Brackeen against Haaland marks the third time the law’s constitutionality has been challenged in the US Supreme Court.

The Story of a Family

One of the parties who filed an amicus brief in the case was Robyn Bradshaw.

Bradshaw is a citizen of the White Earth Band of Ojibwe and lives in Minnesota.

Before her granddaughter was born, she went to an ultrasound with her daughter and helped nurse the girl after she was born.

But things changed in 2014, when Bradshaw’s daughter struggled with addiction. Robyn is a full-time nanny for the children – we’re asking Piper to protect her identity. It was difficult. Bradshaw was evicted because she did not have enough money to support her daughter’s recovery and pay rent.

Piper’s parents lost their parental rights two years later, and the child was sent to foster care because the court wrongly said she was ineligible to be a foster parent.

“I was scared — scared I’d never see him again,” Bradshaw said. It reinforced her own trauma of being taken from her family and forced into a residential boarding school.

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She vowed to never allow her granddaughter to feel abandoned in the same way she did. She went to every hearing, visited Piper and got help getting her nursing license.

Piper was placed with Jason and Danielle Clifford, a non-native family in Minnesota. Bradshaw became qualified as a foster mother, but even after Piper went back to live with her grandmother, the Cliffords challenged Bradshaw’s fitness to have custody.

Bradshaw said she was unfairly accused of being an inappropriate caregiver because she was older and couldn’t afford the bigger house or other comforts that the Cliffords could. He was also accused of allowing Piper to gain too much weight and receiving cards from her biological mother.

These allegations were common in the 1950s and 1960s when Native children were taken from their families through a Bureau of Indian Affairs program known as the Indian Adoption Project.

Officials from the National Indian Child Welfare Association say the large out-of-home placement of indigenous children is done in part because of poverty, which the state agency classifies as “neglect.”

A 1964 Bureau of Indian Affairs press release repeated the racist trope when it celebrated the removal of Native children: “One little, two little, three little Indians – and 206 more – who saved the homes and lives of 172 American families, mostly non-Indians, who had taken waifs India as theirs”.

Image of a press release from the US Department of the Interior

An image from a press release from the US Department of Interior touting adoptions of indigenous children.

“And often, neglect is code for families struggling with poverty or unemployment or substandard housing, lack of transportation — all those basic needs,” Simmons said.

Ultimately, Bradshaw prevailed in court and adopted Piper in 2020. They live in the suburbs of Minneapolis, where Robyn hangs Ojibwe words on the wall. He teaches Piper to speak the language, and they have a handmade drum to sing Ojibwe songs on.

The Cliffords were excluded from adopting Piper because of ICWA, but they remained a party to it Brackeen against Haaland.

“Applying the eleven factors of Minnesota’s best-interest-of-the-child test, the Minnesota court presiding over PS’s adoption found that” Ms. Bradshaw deeply loves. [P.S.],” that he “consistently put [P.S.]our needs first,” that “they share a strong bond and secure attachment,” and that “[i]t is in [P.S.]The best interest to be placed for adoption with Ms. Bradshaw,” said the brief filed before the US Supreme Court.

The Brackens

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In 2016, a 10-month-old boy with a Navajo mother and Cherokee father was placed in Chad and Jennifer Brackeen’s home in Texas while he went to foster care. The boy stayed with the Brackeens for a year.

Then, the child’s parental rights were terminated by the Texas court. The Brackeens started the adoption process, but they were challenged by the Navajo Nation. The argument is that under ICWA, all efforts are necessary to place children and Native families on the Navajo Reservation in Arizona.

They were eventually allowed to adopt the child at the center of the case, but they agreed to be plaintiffs in the case challenging ICWA brought by Texas, Louisiana and Indiana.

The plaintiffs argue that ICWA is a race-based law that violates the rights of non-native parents trying to adopt indigenous children. It also argued that ICWA’s provision calling for ‘active efforts’ to place children with biological families or indigenous foster parents creates an undue burden on the state.

And some high profile names are part of the case including the Goldwater Institute.

“It really harms Native American children and their parents in many ways,” Timothy Sandefur, chief litigator of the Goldwater Institute, said in a recent lecture at the Cato Institute.

Respondents include the Cherokee, Oneida, Morongo, Quinalt and Navajo Nations. They said this is another attack on the sovereignty of the tribe and the fatwa to dismantle the law can be further reorganized to try to protect their children after decades of boarding school policies that are forcibly assimilated and try to erase the indigenous language and culture.

It also says that Indian tribes are political groups of people, not racial groups. Tribal governments determine who is eligible for citizenship.

Potential Effects

If the petitioners succeed in their claim to attack the legal framework that recognizes the sovereign rights of tribes, tribal leaders say the ruling could chip away at other rights for tribal peoples across the United States.

This is not about the welfare of Indian children, leaders of nations and others are speaking in this regard. Instead, they claimed it was a political attack on the tribe. It can affect land and water rights, game and criminal jurisdiction. The existence of Indian States may be open to debate if the Court agrees with the argument that tribal relations between tribal people and their governments are not political, but entirely based on race.

The plaintiffs in Brackeen against Haaland represented by Gibson Dunn, a law firm that is also part of the challenge in the State of Washington against the Indian Gaming and Regulation Act.

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Oklahoma is one of the states that has filed a brief in support of Brackeen’s position that the law is outdated and discriminatory.

The Cherokee Nation, an Oklahoma-based tribe, is on the other side of the argument. They were at the center of the 2013 ICWA challenge.

Chrissi Ross Nimmo is the Deputy Attorney General of the Cherokee Nation, and she said Brackeen’s situation is rare. Most of the time, he said indigenous children are placed with biological family members or indigenous foster parents.

“In cases where there are some placement issues, those cases are usually resolved at the district court level one way or another, and there is no appeal from that,” said Nimmo.

The goal of foster care in any context, he said, is to provide reunification with the mother, which can sometimes make the placement of family and relatives outside the country difficult. He said the courts are usually good at recognizing when that sometimes can’t happen.

The ICWA Baseline Study, examine tribal involvement in the case of dependent children in several jurisdictions. The data shows that children spend less time in the child welfare system when their feet are involved in a case.

According to the Oklahoma Department of Human Services, there are 6,730 children in state custody in November 2022. There are 245 tribal approved foster homes and 303 DHS foster homes that have at least one foster parent who is Native American.

And when ICWA is challenged, Nimmo said it’s sometimes easy to forget the real people involved. He was heavily involved Adoptive Few v. Baby Girl. This case is more commonly known as “Baby Veronica Case”.

In 2013, when the Court ruled that a North Carolina couple had the right to adopt a girl over her biological father who was a Cherokee citizen, she was there.

“I actually took her from the hands of our father to the hands of the adoptive couple,” said Nimmo. And I mean, it’s emotional, I still get emotional talking about it.”

When the US Supreme Court ruled in Brackeen against Haaland, several things can happen. Legal experts say they can rule narrowly and omit parts of the law as they do Adoptive Few v. Baby Girl. It may also give state court control because many states including Oklahoma already have state ICWA laws. It could also attack the entire law, which could change the relationship of trust between the United States and tribal nations.


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