In Native American adoption case, Supreme Court explores race and tribal sovereignty

  

Category:  News & Politics

Via:  1stwarrior  •  one week ago  •  12 comments

In Native American adoption case, Supreme Court explores race and tribal sovereignty
One family's fight could upend decades of federal law.

S E E D E D   C O N T E N T



Dr. Jennifer and Chad Brackeen and their four kids are a blended family in a fight to stay together. But in the process, they   could upend   more than 40 years of federal law on the sovereignty of America's Native tribes and affect the fate of numerous Native children.

Jennifer Brackeen, an anesthesiologist, and her husband, a civil engineer turned stay-at-home dad, are parents to two biological children and two Native American siblings -- a 7-year-old boy and 4-year-old girl -- whom they've fostered for years.

While they have successfully adopted their 7-year-old son, his sister's fate has not yet been decided.

"In December, we have a court hearing again for the adoption of our son's sister. And if we lose, she could be taken away after four years in our home," Jennifer Brackeen told ABC News.

Both adoptions, the Brackeens say, have been hindered by landmark federal legislation that dictates what types of parents get priority in the adoption of Native children through state child welfare systems. This month, the Brackeens   went before the U.S. Supreme Court   to argue that it should strike down key parts of the law. (A ruling is likely to come before the end of June.)

Since 1978, the   Indian Child Welfare Act , or ICWA, has mandated that preference for placement of a Native child must first be given to immediate family members, then another member of the child's tribe, then to an unrelated tribe, before non-native prospective parents are considered. The Brackeens are white.

Congress enacted ICWA as an answer to the forced removal of hundreds of thousands of Native children from their tribes over generations, separating them from families and   placing them in government-run boarding schools   or in Christian churches through the 1960s.

"The interest in a young tribal citizen -- the child -- in staying with her tribe is a high interest and it should matter, [it] should not be diminished," said Chuck Hoskin Jr., principal chief of the   Cherokee Nation , one of the nation's largest tribes with more than 400,000 members, which defends the law.

"If you start to remove the next generation of any society, you really start to erode that society," Hoskin said.

But the Brackeens, in their appeal to the high court, argue ICWA is unreasonable and unconstitutional.

By giving adoption priority to American Indian families over white families, they say, the law discriminates on the basis of race.

"Cultural considerations are a challenge for every adoptive family, no matter what race they are or what race their children are," said Jennifer Brackeen, who argues for greater deference to emotional attachment developed during foster care.

"For [our son] to just get taken away and moved to someone he's never met before, who is not related -- to me, it didn't seem like the right thing to do as his mom," she said of the boy, who is part Navajo. The couple won custody in 2018 after a two-year legal battle when the Navajo Nation backed down.

Conservative legal scholars have also argued that Native American identity as defined under ICWA is inherently an unlawful, race-based classification.

"It defines an [American] Indian child as a child who is either a tribal member or could someday become a tribal member based entirely on biological ancestry," said Timothy Sandefur, an attorney with the Goldwater Institute, a conservative think tank that filed an amicus brief with the court in support of the Brackeens.

"That means that it applies to children who may never become members of tribes at all, and applies to children who have no cultural, political, social, religious connection to a tribe whatsoever," Sandefur said.

The nation's 574 federally recognized tribes, backed by years of   Supreme Court decisions , strongly disagree.

They insist eligibility for membership in their sovereign nations is political, much in the same way the U.S. government sets objective requirements for citizenship. And, they argue, ICWA is critical to keeping Native cultures alive and protecting the tribes' existence as independent nations.

"The Court has always held that Indian law is not race-based," said Cherokee Nation Deputy Attorney General Chrissi Ross Nimmo. "If the [Brackeens] are successful here, that whether or not a child is subject to ICWA turns on their race, then it could allow some groups to question other areas of Indian law and the very existence of Indian nations in our country."

The Brackeens say they understand the importance of tribal sovereignty but insist that circumstances in their case warrant a different course. The children have spent years in their home, and their birth mother signed an affidavit approving of permanent placement with them.

Even though they've already won custody of their son, they're still fighting to adopt his younger sister -- their foster daughter -- who state officials were prepared to place with a Native family nearly 1,000 miles away because of ICWA.

"In the state system, certainly we would have been the first call, and in our mind that's the logical step for a child and care is to keep them with their closest family member, and that's in our home," Chad Brackeen said.

"The Indian Child Welfare Act [is] quite a stout law to go up against. The justification to deviate from that law is a pretty high bar to overcome," he added.

Neither the Navajo Nation nor the children's relatives responded to ABC News' repeated requests for an interview. But in their brief to the Supreme Court, the tribe argues that ICWA "protects the best interests of Indian children and [promotes] the safety and security of Indian tribes and families."

"Being American Indian is not a racial matter. It's a political matter. We're members of tribal nations that are sovereign nations," said Autumn Adams, a member of the Yakima Nation, who is among dozens of former foster youth asking the Supreme Court to uphold the law. "It is the inherent right of a sovereign nation to protect those youngest citizens."

Adams describes herself as an ICWA success story, more than a decade after landing in the Washington state foster system when her father died by suicide.

"My mother at that time was addicted to alcohol and, [from] what I've gathered now that I'm older, some hard drugs," Adams said. "Immediately after that, actually, she spiraled in a really dark hole."

Adams, who was 9 years old at the time, and her then-2-year-old brother John were taken into state custody and later placed with tribal relatives. She said that if authorities had not found a willing relative, it is likely that she would have been split from her brother and placed with a non-Native family.

"There are not a lot of Native foster homes," she said.

Today, Adams has custody of her two younger siblings, raising them in her home while attending law school on the side. She said their close personal bond and vibrant family traditions illustrate why ICWA matters.

"Even to this day, we are working on relearning our language and we still continue to practice our traditional teachings," Adams told ABC News inside her suburban Phoenix home.

Native children are four times more likely than white children to be placed in foster care in this country, according to the National Indian Child Welfare Association.

More than a decade ago, 27% of Native foster children were placed with other family members; today, it's up to 38%, according to the 2020 Adoption and Foster Care Analysis and Reporting System. Experts attribute the improvement to ICWA.

"Tribal families know what they're doing. Yes, there are challenges, but what was happening in the century before ICWA was just so detrimental to tribal communities," said Hoskin, principal chief of the Cherokee.

But the Brackeens contend equal opportunity to adopt doesn't have to come at the expense of culture. The couple told ABC News they take their Native children on summer visits to the Navajo reservation in Arizona and participate in local cultural events at home in Texas.

"One of the biggest things we can do is educate ourselves," said Chad Brackeen. "We do share a lot of common values with the Native Americans -- with taking care of each other, with the emphasis on family and the emphasis on elders and children of those in need."

The tribes warn the stakes in the Brackeen case are bigger than one family.

If the Supreme Court strikes down ICWA as discrimination on the basis of race, they say it could upend broad swaths of federal law predicated on tribes as independent political nations -- not racial groups.

"If our sovereignty is eroded because of this case, we're going to have a setback that will take generations to repair, if we can repair it at all," said Hoskin. "But we're Native people. We are persistent; we are patient; and we are strong."

The Brackeens say their focus remains on their family, hoping the nation's highest court finds a balance, as they see it, between respect for tribes and young children who have already been through so much.

"A child has already had a trauma being removed from their biological family, and so to increase that trauma by removing them again, there just needs to be a really good reason for that," said Jennifer Brackeen. "We do believe culture is important, but it's not the most important thing."


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1stwarrior
Professor Guide
1  seeder  1stwarrior    one week ago

The tribes warn the stakes in the Brackeen case are bigger than one family.

If the Supreme Court strikes down ICWA as discrimination on the basis of race, they say it could upend broad swaths of federal law predicated on tribes as independent political nations -- not racial groups.

Tribes/Nations have been fighting the "system" since 1789 as independent political nations.  SCOTUS has, in many cases, ruled/stated that the tribes/nations are independent political nations, but Congress, the do-nothing branch of the governmental body, is ruled by the Gold and as long as the Gold is out there, the tribal/nation political standings are being further and further reduced.

There is no other ethnic grouping in American that has had so many laws written to almost totally hog-tie a people from advancing.  25 Code of Federal Regulations (25 CFR - Indians) is the embodiment of 274 laws/rules/policies/procedures to keep the tribes/nations from gaining an "equal" footing in the U.S. 

Hell, we can't even write a will without having it approved by the BIA.  That happen to any other ethnicity?

But - it's OK to forcefully take our kids out of our homes and make them attend "Boarding Schools" to "Kill the Indian, save the Man" - in other words, eliminate the Indian people and make them like the "White Guy".

It's OK that 38% of Indian children are torn from their families in forced adoptions in seven states because, according to dominant society, the families don't know how to raise children or take care of them.

But, hey - a White Dr. and White Dr., fairly rich folks, can take care of an Indian child better than the Indian families who will help the child grow with knowledge/understanding/appreciation of their heritage/culture/traditions/history/religious practices - right?

Yeah - right.

 
 
 
Texan1211
Professor Principal
1.1  Texan1211  replied to  1stwarrior @1    one week ago
It's OK that 38% of Indian children are torn from their families in forced adoptions in seven states because, according to dominant society, the families don't know how to raise children or take care of them.

I would like to read more about that. Do you have a link?

 
 
 
1stwarrior
Professor Guide
1.1.1  seeder  1stwarrior  replied to  Texan1211 @1.1    6 days ago

Although progress has been made as a result of ICWA, out-of-home placement still occurs more frequently for Native children than it does for the general population. In fact, recent research on systemic bias in the child welfare system yielded shocking results. Native families are four times more likely to have their children removed and placed in foster care than their White counterparts. So in spite of the advances achieved since 1978, ICWA’s protections are still needed.

Congress enacted the Indian Child Welfare Act (“ICWA”) in 1978 to address abuses by state and private child welfare agencies that resulted in the forced removal of roughly one-third of all Indian children from their families.

State courts have pushed back against proper deference to ICWA and violate ICWA by misapplying its provisions and refusing to transfer custody and adoption cases to tribal courts.

When it comes to South Dakota, Tweedy said that the removal of Native children from their tribal and cultural communities into white households is already high.

“And so, I think, striking down, it would just cause those, I would imagine, cause those rates to go through the roof, because they’re already very concerning,” Tweedy said.

And because Native children represent about 55% of all children in state custody, Chen says overturning ICWA would have huge implications for Alaska. At the same time, Native people only make up a little over 20% of the population, so there’s a disparity, she says, and a feeling that the state hasn’t done enough to implement ICWA to begin with.

The ICWA courses I took in school go a lot deeper into the figures/cases.

There are plenty of resources available for those who wish to conduct research.

 
 
 
Texan1211
Professor Principal
1.1.2  Texan1211  replied to  1stwarrior @1.1.1    6 days ago

Thank you for the links, pretty interesting.

I misunderstood you when you said 38% of Indian children were torn from their homes and force-adopted. I thought you were referring to today's stats.

In this case, do you feel the needs of the children (who seem to be well cared for) are less important than the needs of Indian nations?

 
 
 
Kavika
Professor Principal
2  Kavika     one week ago

SCOTUS did it a few months ago with the  Oklahoma v. Castro-Huerta, they could and probably will rule against ICWA.

Maybe we'll see another leak from the court.

 
 
 
Diablo Imperius
Professor Participates
3  Diablo Imperius    one week ago

There’s no doubt in my mind that the system is screwed up, and the notion that you can do this to somebody after years of having the adoptee in a home is even worse.  I’ve had some experience with this personally and I can say honestly unless they’re around at the time of adoption then they’re out of their fucking minds. 

Plus, The notion that limiting adoption in that manner is gonna save the culture in some way is complete fucking bullshit.

I have a lot more to say on this topic, but I’m gonna leave it at that.

 
 
 
1stwarrior
Professor Guide
3.1  seeder  1stwarrior  replied to  Diablo Imperius @3    one week ago

Probably one of your better decisions - staying out of it.

 
 
 
Kavika
Professor Principal
3.1.1  Kavika   replied to  1stwarrior @3.1    one week ago

California, Oregon, Washington, Iowa, Minnesota, Michigan, Nebraska, New Mexico, Wisconsin and Oklahoma each have laws that codify the federal protections under ICWA and augment them, said David Simmons, director of government affairs and advocacy for the National Indian Child Welfare Association. Simmons added that in addition to those 10 states, many others have references to federal ICWA requirements in their laws, regulations, program guidance or intergovernmental agreements with tribes. Some states also have intergovernmental agreements between their child welfare agencies and one or more tribes, including those that are not recognized by the federal government, he said.

 
 
 
1stwarrior
Professor Guide
3.1.2  seeder  1stwarrior  replied to  Kavika @3.1.1    6 days ago

Good points - 22 states have signed on to this case in the Amicus Briefs in further support of ICWA.

 
 
 
Diablo Imperius
Professor Participates
3.1.3  Diablo Imperius  replied to  1stwarrior @3.1    6 days ago

Fact is, I'll never be "out of it".  An adopted child is a lifelong commitment of love.

 
 
 
Texan1211
Professor Principal
4  Texan1211    one week ago

Looks to me like the Brackeens are the only ones at all concerned about the actual well-being of the child they already have adopted and his sister. Who in their right minds would split siblings up over nothing more than ideology?

I wonder if the parties to the lawsuit are willing to explain to the kids how it would be better if they split up.

 
 
 
Texan1211
Professor Principal
5  Texan1211    6 days ago
"Being American Indian is not a racial matter. It's a political matter. We're members of tribal nations that are sovereign nations," said Autumn Adams, a member of the Yakima Nation, who is among dozens of former foster youth asking the Supreme Court to uphold the law. "It is the inherent right of a sovereign nation to protect those youngest citizens."

Are we going to deny two siblings a life with a family that they know and who loves them for the sake of politics?

In what way does this protect the kids, and from what?

 
 

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