Jennifer and Chad Brackeen welcomed Zachary into their Texas home as a foster placement in 2016 and sought to adopt him a year later after his parents’ rights were terminated.
They had custody. They had Zachary’s parents’ support.
What they didn’t have was Navajo blood.
Under ordinary circumstances, state courts or governments consider the best interests of the child, but Zachary’s birth mother is Navajo and his birth father is Cherokee.
Under the Indian Child Welfare Act, decisions about adoptions of American Indian children shift into tribal hands.
The Brackeens are challenging the Indian Child Welfare Act as unconstitutional. On Nov. 9, they and two families in similar situations will take their cases to the Supreme Court.
“We want the law to support getting all children into loving forever homes,” the Brackeens said in a statement to The Washington Times. “In our journey from being foster parents to adopting a brother and sister, we encountered a law that ignores both the children’s best interests and the wishes of their birth parents. This is the law we are working to change so that all children, regardless of race, can have a loving forever home.”
Tribes say a long history that informs the law gives preference to tribal placement of Indian children who live away from tribal lands.
In a brief to the justices, a group of nearly 500 Indian tribes pointed to forced assimilation in the 19th century, which included removing children from reservations and placing them in government-run boarding schools. Many of the children were fostered or adopted by non-Indian families.
Social workers making placement decisions often had predispositions against American Indian homes. As a result, as many as 90% of Indian child placements were in non-Indian homes.
The tribes said the Indian Child Welfare Act, enacted in 1978, was intended to rewrite that negative presumption and give tribes a chance to assert their desire to have Indian children raised by tribal families.
“ICWA remains one of the most important pieces of federal Indian legislation ever enacted,” the tribes told the justices.
Census Bureau data from a decade ago shows that roughly 18,000 American Indians or Alaska Natives younger than 18 were adopted. The National Indian Child Welfare Association estimates that 56% of those children were placed in homes outside their tribal communities.
Charles Martin, tribal chairman of the Morongo Band of Mission Indians, called the Brackeens’ lawsuit an attack on tribal families.
“Children are the future of our tribal communities,” Mr. Martin said. “We will not go back to a time where children were stolen from our community without cause.”
‘Legal uncertainty’
The case raises thorny questions about ethnicity and identity and joins a line of cases before the justices this term dealing with fundamental questions of discrimination.
The 5th U.S. Court of Appeals generally sided with the Brackeen family last year, though the judges were deeply divided over some aspects of the ruling. They deadlocked on the key question of whether the law’s requirement that tribal placements be preferred violated the 14th Amendment’s equal protection clause.
The competing opinions in a single circuit begged for the justices to hear the case.
“This confusion and conflict over the constitutionality of a federal statute would be problematic in any context but is untenable in the sensitive area of parent-child relationships,” the attorneys for the non-Indian families said. “The legal uncertainty discourages foster and adoptive families and leads inexorably to delay in the disposition of placement cases that deprives the children involved of stability that is critical to their well-being.”
Matthew McGill and Mark Fiddler, the attorneys, said the Indian Child Welfare Act causes children to be treated like “resources” of the tribes.
Tehassi Hill, chairman of the Oneida Nation, said in a recent press conference that separating children from tribal homes has lasting impacts. He said the children lose access to medical records and suffer “an identity crisis of trying to figure out who your family is, where you’re from, the health history and the connections to the community.”
The law helps children avoid those situations, he said.
“The Indian Child Welfare Act is an issue that maintains overwhelming bipartisan support,” Mr. Hill said.
The Biden administration is siding with the tribes in the case. Texas is leading several Republican-led states in backing the families.
Placement problems
Zachary, or A.L.M., as he is identified in court filings, was placed in foster care with the Brackeens at 10 months old after Texas officials took him from his Navajo mother. The woman and the birth father voluntarily relinquished their parental rights and supported the Brackeens’ adoption of their son.
The Navajo Nation intervened in the court proceedings by arguing that the infant should be placed with a family in the tribe. The Navajo Nation found a competing placement, and a Texas court, citing the Indian Child Welfare Act, put Zachary’s adoption on hold.
The Navajo placement eventually failed, and the Brackeens finalized the adoption. The Brackeens have since struggled with the adoption of Zachary’s half sister even though the mother supported the idea of the children being raised by the same family.
Another family in the litigation, Nick and Heather Libretti, sought to adopt “Baby O” in 2016 with the consent of her biological mother. The birth father, identified in court papers as E.R.G., is a member of the Ysleta del Sur Pueblo Tribe in El Paso, Texas. The tribe intervened in the adoption to try to block the Librettis.
The two sides eventually reached an agreement, and the adoption was successful. The Librettis say they are now wary of fostering Indian children without more certainty about the path to adoption.
A third family in the litigation, Danielle and Jason Clifford of Minnesota, sought to adopt “P.S.” after she was placed with them in 2016.
Robyn Bradshaw, the girl’s maternal grandmother and a member of the White Earth Band of Ojibwe, fought for custody. Ms. Bradshaw said she helped raise the child from 2011 to 2014 and P.S. deserved to be placed with her.
As a child, Ms. Bradshaw was forced from her home and into one of the government’s residential boarding schools. She eventually ran away. Her attorneys told the Supreme Court that she was determined not to abandon her granddaughter to a similar experience.
Ms. Bradshaw cleared up some obstacles with her criminal record and won certification as a foster home so she could take placement.
The tribe, which at first said P.S. wouldn’t be enrolled as a member, reversed course.
With those developments, Minnesota removed P.S. from the Cliffords in 2018 and placed her with the grandmother under the strictures of the Indian Child Welfare Act.
Ms. Bradshaw raised concerns in her filing that a decision by the justices in support of the 5th Circuit’s ruling could create an opening for P.S.’s placement to be challenged.
The case is Brackeen v. Haaland.
— This story has been updated to clarify the role of Republican-led states.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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