Texas family fights at Supreme Court to keep adopted Native American child due to law that favors tribes
S E E D E D C O N T E N T
Chad and Jennifer Brackeen are litigants in a Supreme Court case set for oral arguments next month over the Indian Child Welfare Act, which their lawyers say is racially discriminatory against non-Native families seeking to adopt Native children.
Chad and Jennifer Brackeen almost had their Native American adopted son taken away from them because of a federal law that codifies what their lawyers say is "racial discrimination." Now, the family is fighting to keep custody of his half-sister through a Supreme Court case that could gut a major part of that law but which Native tribes warn could strike a far-reaching blow to their sovereignty.
The case, Haaland v. Brackeen, combines cases from a handful of other families and multiple interested states, including Texas, where the Brackeens live. At the center of the controversy is the Indian Child Welfare Act (ICWA), a 1970s law meant to protect Native American children in state child custody proceedings.
The law was a reaction to high rates of Native children being adopted by non-tribal members - often with little process and unjustly. It prioritizes placing Native children with extended family members, members of their tribe, and if that's not possible, with another Native family. Exceptions for "good cause" are allowed but not specifically defined.
"Congress's racial discrimination is 'most evident' in ICWA's third placement preference … which bluntly favors any 'Indian famil[y]' from any of 574 tribes over any non-Indian family," a brief from the Brackeens' lawyers says.
"The placement preferences 'operate individually and jointly' to disadvantage non-Indian parents seeking to adopt an Indian child," reads the court filing.
Chad and Jennifer Brackeen told Fox News Digital that they are worried their adopted daughter, Y.R.J., could be "ripped" from their family thanks to the Indian Child Welfare Act. (Tyler Olson/Fox News Digital)
The Brackeens' lawyers also argued that Congress overstepped its bounds by trying to regulate state child custody proceedings.
The Brackeens began fostering their adopted son, referred to in court documents as A.L.M., in 2016, after his mother, a member of Navajo Nation, was unable to care for him. Navajo Nation eventually identified A.L.M. as a member of its tribe more than a year later, according to the Brackeens, and sought to place him with other tribal members who were not related to him and lived in a different state.
"They had decided that we were not a suitable home for him. And so we decided to pursue adoption through the court system," Jennifer Brackeen told Fox News Digital.
The family to whom the Navajo Nation wished to send A.L.M. stepped back from the proceedings, and the Brackeens won custody. But their adoption saga continued after A.L.M.'s mother gave birth to his half-sister, known as Y.R.J.
The biological mother supported placement with the Brackeens. But Navajo Nation sought to place Y.R.J., according to the Brackeens' lawyers, "in another state hundreds of miles away with either a great-aunt or an unrelated Navajo couple."
The Supreme Court will hear the case Haaland v. Brackeen on Nov. 9, 2022. Several Native American tribes and a handful of states are also parties in the case. (Collection of the Supreme Court of the United States via Getty Images)
That case is still in a state court in Texas. But the Brackeens' lawyers say the result of their Supreme Court case, which stemmed from their fight to keep A.L.M., will likely decide the result of Y.R.J.'s case and thus the future of their family.
"It's been three and a half years in court, and we have not been able to finalize that adoption," Chad Brackeen said.
"Our children are young, our oldest is 13, the baby sister is 4 and a half. So, to some degree, only the oldest are fully aware of what we're going through," he added. "And it's our responsibility to sort of shield our children at this point of the uncertainty, that she could ultimately be taken, ripped from our home and moved states away."
The tribes, meanwhile, say the Brackeens' argument that favoring placement with Native families is the same as racial discrimination ignores centuries of U.S. law treating the tribes as political entities, not racial groups. The tribes on the case, including Cherokee Nation, Oneida Nation and the Morongo Band of Mission Indians, say this understanding is key to "Congress' unique obligation toward the Indians."
"The precedent of the Supreme Court is that Indian tribes are political groups of people, they are not racial groups of people," Chrissi Ross Nimmo, the deputy attorney general of Cherokee Nation, told reporters Tuesday. "Tribes determine citizenship ... just like countries."
The Supreme Court next month will hear a case that could have major ramifications for Native American sovereignty. (AP Photo/J. Scott Applewhite, File)
If the Supreme Court were to rule that ICWA's provisions are racially discriminatory, Nimmo said, it would bring into "question other areas of federal Indian law, and quite frankly, the modern day existence of Indian nations in our country."
"Tribes are separate sovereigns, and the Constitution expressly authorizes Congress to legislate specifically for Indians," a brief from the tribes says. "Congress has thus passed statutes that legislate specifically for Indians — protecting their lands, regulating their trade, punishing crimes against them, managing their resources, and providing education, housing, and healthcare (sic)."
Kate Fort, the director for the Indian Law Clinic at Michigan State University, called the case a "facial attack on tribal sovereignty." She also said it could "lead to a fundamental re-understanding of how Congress can or cannot pass laws for tribes."
Fort said other litigants suing over an alleged gambling monopoly for Native Americans in Washington state are already mimicking the arguments being used in the Brackeen case.
Nimmo also said that the tribes handle thousands of adoption and foster cases per year under ICWA, almost always with positive results. Cases like the Brackeens', in which there's a significant dispute over where to place a child, represent just a "tiny fraction," she said.
The Brackeens, however, say they're just looking out for the best interest of the children whose care they're entrusted with.
"Ultimately, these two siblings belong together," Chad Brackeen said. "We feel that a move at this point to break those bonds that have developed over time would be detrimental to her and ultimately be detrimental to our son."
The case is set for oral argument before the Supreme Court on Nov. 9.
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It's not the real mother who wants the baby back, she is happy with the foster parents, it's the tribe, which seems to be racist.
Any thoughts?
And, no, the "real mother" had her children taken from her - by the State - because she has a known drug/alcoholic addiction and the tribe is attempting to maintain some sort of family continuity - how is that racist?
Vic, it is not racist. It is about the child's real family and the child's culture.
If culture wasn't important, why do we celebrate all the different ones that makeup America?
How so?
The alt-right's platform is built on culture wars. This article is trying to add to that divide making this family into "White Saviors" over actual family of the child.
Ahhh - but the "right" didn't force the Indians off their lands and plant them on reservations - the "left", of which Andy Jackson was a very strong/popular member, has that dubious honor.
But, hey, the "right" and "left" are both mostly white, so you were partially correct.
The definitions of liberal and conservative were not the same in 1820 as they are today. End of story.
Okay, but that doesn't address my point of the current populist political landscape.
The biological mother supported placement with the Brackeens.
The actual family is not involved. Read the article
Why don't you tell him? There in no actual family involved in this.
The child has other members who want the child. Off the rez, if other family members are available the children go to them. Many of my students were living with grandparents or aunts and uncles when the mother was found unfit.
They are not family members!
Off the rez, if other family members are available the children go to them. Many of my students were living with grandparents or aunts and uncles when the mother was found unfit.
But that's not the case here.
This is strictly about not letting whites raise that child. Remember the biological mother is in favor of the current foster parents
Vic, there is more to a person than their color. I look very white, but I know my culture. This is about preserving our Indian culture, which is no different than many other Americans.
And in cases where the child was taken away from the mother, the mother's opinion rarely matters.
Yes Perrie, that's the point I'm trying to make.
I look very white, but I know my culture.
You told me that you are a mix of things. You know at least 3 cultures.
This is about preserving our Indian cultrue.
Over the welfare of a child. That seems disgusting to me.
You want to make this personal? The cultures that I identify with are Ashkenazi Jewish and Indian.
I want you to mark that I am not making this personal about you.
Not I, You brought your ancestry into it.
The cultures that I identify with are Ashkenazi Jewish and Indian.
Not British?
I want you to mark that I am not making this personal about you.
Nobody made it personal. You brought it up. If you think that I've made it personal, I'll end this conversation right now.
In a very generic way. Everyone here knows what I identify with.
While I love to see my family there, and the streets feel like home since I actually lived there, the answer to that would be no. If you knew what the Brits felt about Americans when I was growing up there, you would feel the same way, too. It is also why I gave up my dual citizenship.
Try again - Two major parties dominated the political landscape: the Democratic Party, led by Andrew Jackson, and the , assembled by Henry Clay from the National Republicans and from other opponents of Jackson.
https://en.wikipedia.org/wiki/Second_Party_System#:~:text=Two%20major%20parties%20dominated%20the,from%20other%20opponents%20of%20Jackson.
Next?
YOUR article mentions "maybe a Great-Uncle or". The language in the hit piece is extremally slanted and is scant on actual facts. A real news article would be certain if it were a great uncle or not. Fox News panders to the populist right with charged language like "ripped away". I'm not buying it.
The "Brits" didn't like Americans?
I'm glad we arrived at this point. Here is what I want to leave you and my good friend with:
At one time there was discrimination everywhere. Where I grew up there were only 2 kinds of people: the next to last off the boat and the last off the boat. The last off were viewed as cheap labor and a threat to those who were in the new Unions. The difference is that I only blame those who actually commit the vile acts. Not an entire group. I'll never forget what happened nor should 1st Warrior, but I can say that some of my best friends today are Irish Americans.
That's today's lesson.
And?
The liberals of 1820 or 1830 were not the same as the liberals of today. Period. I dont care if Andrew Jackson was a "Democrat".
In those days there was no such thing as what we would now call the modern "liberal" ideology.
Then why not let these people... who care enough about these kids to wage a costly legal battle for custody... raise them?
You think the Brits calling Americans cousins is a compliment?
So the welfare of the children is secondary to them being raised by Navajo relatives or unrelated Navajo couples?
I don't have a problem if they want to place babies with family members or tribal members that want them; but there should be a ready list available so they can be fostered with them immediately.
It doesn't sound like anyone has a problem with the Brackeen's parenting or their ability to care for the children; just that they are not Navajo.
You don't rip children from good parents that are able to care for them, period.
It sounds like the Native American nations need to get their adoption procedures up to snuff to make sure this doesn't happen in the future.
I agree
And, seems to me like you might wanna read # 4 before you comment again.
I read #4; and so what?
My point remains the same.
I have no problem with Native American children being placed with Native American family members; but it needs to be handled from the start. Not have the children placed with non Native American fosters. If the system is broke then it needs to be fixed, period.
Are you claiming that Brackeens are unfit parents because they are not Navajo? That they will not raise the children to the best of their abilities or provide them a good home?
If you want these children stripped from the Brackeens for no other reason than race; then is there any reason not to have any adoptive child stripped from their parents if they are not of the same race; or even sexual orientation?
How far do you want to take this cultural purity?
Yep, first and foremost it should be about the welfare of the kids. Any “good” family court in the USA can discern that. Tribal or otherwise.
Just because one is Native American, doesn’t exclude one from being an idiot. Seems the main loser here would be the kid.
Indian Child Welfare Act (ICWA) was created in 1978 by the federal government to re-establish tribal authority over the adoption of Native American children.
The goal of the Act was to strengthen and preserve Native American family structure and culture .
Studies conducted in advance of ICWA’s drafting showed that between 25% and 35% of all Native children were being removed from their home by state child welfare and private adoption agencies. Of those, 85% were placed with non-Native families, even when fit and willing relatives were available.
ICWA was established as a safeguard that requires placement cases involving Native American children be heard in tribal courts, if possible, and permits a child’s tribe to be involved in state court proceedings. It also requires testimony from expert witnesses who are familiar with Native American culture before a child can be removed from his or her home.
If a child is removed, either for foster care or adoption, the law REQUIRES that Native American children be placed with extended family members, other tribal members, or other Native American families prior to placement in non-Indian homes.
(For a more complete explanation of the requirements of ICWA, please visit and read the Native American Rights Fund’s “ Practical Guide to the Indian Child Welfare Act .”)
However, despite the progress which has been made since 1978, the need for ICWA remains today.
Dispelling Myths About the Indian Child Welfare Act of 1978 (ICWA)
Myth 1: ICWA was overturned by the U.S. Supreme Court in Adoptive Couple v. Baby Girl. False. This decision did not overturn ICWA. ICWA still remains law and still applies to private adoptions and child welfare cases. However, the decision limited ICWA’s protections for unwed fathers without custody when their children are voluntarily placed for adoption and changed how ICWA’s placement preferences are applied in voluntary adoptions.
Myth 2 : ICWA is a race-based law. False . ICWA, like other federal Indian legislation, is based on the unique political status of tribes and Indian people, not race. This status—established by Congress, the Constitution, statutes, and treaties—has been affirmed and reaffirmed by U.S. Supreme Court decisions for 200 years.
Myth 3 : ICWA applies in divorce proceedings and custody battles between two biological parents. False . ICWA only applies in child welfare proceedings and adoption proceedings.
Myth 4 : ICWA applies to all children who identify as Native American. False . ICWA covers any child who is either a member of a federally recognized tribe/Alaska Native village or is eligible for membership in a federally recognized tribe/Alaska Native village and is the biological child of a member of a federally recognized tribe/Alaska Native village.
Myth 5 : ICWA ignores the best interests of Indian children. False . ICWA is designed to promote the best interest and unique needs of the Indian child. ICWA is not just considered good practice for Native children by experts and practitioners, but the principles and processes ICWA embodies were recently described by 18 national child welfare agencies as the “gold standard” for child welfare practice for all children.
Myth 6 : ICWA favors Indian family members over non-Indian family members. False . Nowhere in ICWA does it indicate placement preferences favor placement with a Native relative over placement with a non-Native relative.
Myth 7 : ICWA only requires efforts to protect Indian children after they are removed from their home. False . ICWA requires something called “active efforts”. This means that the state must work closely with the family to ensure they receive any services necessary before a child is removed to prevent removal from the home, or—if removal was necessary—they receive services and support so that the child can be safely returned.
Myth 8 : ICWA applies only to involuntary proceedings. False . ICWA was designed to also protect Indian children in voluntary proceedings. While some of the provisions of ICWA do not apply in voluntary proceedings, many important provisions still apply, including those provisions that speak specifically to procedures for voluntary adoptions and foster care placement.
Myth 9 : ICWA funnels Indian children into placements on reservations that are bad places for children. False . ICWA has no such requirements regarding reservations. Unfortunately, issues of child abuse and neglect—and the need to place children into foster care that result—are a nationwide problem, and not relegated to any specific community. In fact, NPR recently reported that when it comes to child maltreatment, “statistically, tribes are no different from many other communities nationwide.”
Myth 10 : ICWA was important in the 1970s but it’s no longer needed now. False . ICWA still provides much-needed protections for Indian children and families. Statistics tell us that Indian children today face many of the same issues as when ICWA was enacted. According to National Indian Child Welfare Association (NICWA), “Native children are removed from their homes at 2–3 times the rate of their white counterparts and often are not placed with relatives or other Indian families, even when such placements are available and appropriate. In addition, “Native families are the most likely to have children removed from their homes as a first resort, and the least likely to be offered family support interventions intended to keep children within the home.”
Vic - I would like to ask you to quit denigrating topics dealing with Native Americans. Until you - YOU - have worked with, studied, associated with the Native American people, all you are is an antagonist against cultures/traditions/heritages and history you know little to nothing about.
Learn before you speak.
My friend, I think you have it wrong. I am questioning the wisdom of denying a welcoming family for this child. Why don't YOU ask the child what he wants.
"denying a welcoming family for this child"???? So the Native American family - A WELCOMING FAMILY - has less rights than a white family who have more "money" to provide for the material side of life??? How 'bout the psychological/emotional side of life that the Native American community/extended family can give the child? How 'bout when the "child" gets into school - "hey, you said you're Indian - why you living with white folks then?" The answer shure as hell won't be 'cause no Indian family wanted him - cause they sure do/did before Ol' Whitey Judge O'Bannon ruled in his normal racist mode.
How 'bout "listening" to the voice of one of those children -
There’s another voice missing from many of these conversations: that of the adoptee. Sandy White Hawk, a Sicangu Lakota adoptee from the Rosebud Reservation in South Dakota, is the founder of the First Nations Repatriation Institute, which researches Native adoptees and helps to reunite them with their tribes and families.
“When we grow up in a white home in a white community, that’s all we see and know. We don’t know anything about being Native, and most white people don’t know anything about who we are,” White Hawk said. “You don’t have your image mirrored back to you in any way. That’s a distortion as you develop your identity.”
White Hawk, who experienced abuse in her adoptive home, said it’s important to recognize that all adoptions aren’t happy endings. A 2008 University of Minnesota study has shown adoptees have greater odds of an ADHD or ODD diagnosis than those who have not been separated from their families, and that adoptees are more likely to have contact with mental health professionals. In 2017, White Hawk and several others published a study of hundreds of adoptees that showed Native American adoptees were more likely to report mental health problems — including substance use disorder and recovery, eating disorders, self-harm, and suicidal ideation — than white adoptees.
“There’s nothing in our societal messages — everything about adoption is a forever happy home, and while there are happy children and there are kind and loving parents, this other reality is there, period,” White Hawk said. “And that doesn’t mean a bash of adoption. But we’re so invested in this forever-happy-saving-children thing that anything that critiques it — there’s no willingness to hear that.”
White Hawk helps organize an annual “gathering for our children and returning adoptees” powwow to help welcome Native adoptees back into their tribes. “I knew how painful and how hard it was to take your place in the circle once you’ve been gone. There was no roadmap, no one could help,” White Hawk said. “For those that may not have even met their family or have been home for a long time, it’s the first time it’s been acknowledged that they’ve suffered grief and loss.
Is that "White" family Native American? Nope. Are they concerned with upholding the Fed law that PROTECTS the Native American families? Nope.
the Brackeens also fought to obtain custody of the boy’s sister, whose Navajo extended family wanted to take her in. At the hearing deciding the girl’s fate, Chad Brackeen left out any self-consciousness about his large home with a pool on an acre of land that he had expressed to the Times. He told the judge that he worried for the baby girl, “not as an infant living in a room with a great-aunt but maybe as an adolescent in smaller, confined homes.”
“I don’t know what that looks like,” he continued, “if she needs space, if she needs privacy. I’m a little bit concerned with the limited financial resources possibly to care for this child, should an emergency come up.”
This cultural difference — that a family’s fitness is determined by its wealth, and that those concerns should outweigh a child’s connection to their family and heritage — is essentially why the Indian Child Welfare Act was created in 1978. The law recognizes the history of federal policy aimed at breaking up Native families and mandates that, whenever possible, Native families should remain together.
"Kill the Indian, Save the Man" - boarding school shyte to make EVERYONE white is now being brought back into our "pay for play" society. "Futch" what the law sez - I can do better because I'm white and have more money than you.
Is that beneficial to the child? Or, do you just want to placate the "more financially endowed" white family?
I wish I could vote that up twice.
Excellent and some of the ''Lost Birds'' are returning to their tribes/people after decades of being ripped away.
The answer for decades has been the latter which is one of the reasons why ICWA was passed.
Vic - I really do understand what you have tried to do with this thread.
BUT - if it ain't 'bout Trump/Biden, it ain't gonna get discussed - not in this NT makeup.
Thank you for trying to bring other topics that have meaning to others to the board.
As far as Native American topics/issues - yeah - I, Kavika and maybe one or two others will jump right in with a sincere effort to offer education because, in reality, there is so much misunderstanding/lack of knowledge on those topics/issues and, well, we're just trying to help.
Where were they in the beginning? These people were found by the Tribe after another family took them in.
I know you do. That's the problem.
IMO, the reason for ICWA was because the theft of Indian children was simply a variation of the ''Indian Boarding Schools'' in which the end result was the destruction of the child and in many instances the family.
One must also look at the government's Indian Adoption Project.
LMAO.
They were there and the Nation/Tribe was in the process of handling it in accordance with Nation/Tribal law/customs and ICWA. However, the state (Texas) decided they knew how to handle the issue their way - best.
How is her "wishing" a problem??
Who's wishing?
The biological mother supported placement with the Brackeens.
You, to Perrie in 4.1.6, stated "I know you do. That's the problem." in response to her comment of 4.1.2 "I wish I could vote that up twice."
Why is her comment a problem?
If Perrie is interested I'll gladly explain it to her. Perrie is not a topic.
Please explain it to me in a note.
Does that process really take a year? What were these kids supposed to do in the meantime?
"The goal of the Act was to strengthen and preserve Native American family structure and culture ."
So that's it? Even if it might not be in the best interests of the child?
The biological mother supported placement with the Brackeens. But Navajo Nation sought to place Y.R.J., according to the Brackeens' lawyers, "in another state hundreds of miles away with either a great-aunt or an unrelated Navajo couple."
Shouldn't siblings be placed together?
If at all possible - BUT - with the break-up of tribes onto the reservations and other government programs, tribal families are separated by the government - white families are not.
Very possible in this case, not even up for debate.
I see.
"with the break-up of tribes onto the reservations and other government programs, tribal families are separated by the government"
How 'bout we change "tribes/tribal" to read - with the break-up of "white neighborhoods" onto the reservations and other government programs, "white" families are separated by the government
Do you see now? "Can you hear me"?
The biological mother is happy with the placement
Because, by Fed/State/Tribal law, a person who has an addiction problem with drugs/alcohol can be "put away", involuntarily, and their children, if they have any, WILL BE PLACED with another home, either through the foster care or adoption process.
The mother is one of those.
Well, you bring up an excellent point.
If these were white children doing quite well under the foster care of a minority family for a year, and then a government agency tried to claim them because the foster family wasn't white, we would be neck deep in anti-racist outrage.
Shouldn't the tribe have to show how ripping the child from the home it knows will be better for the child?
Let's try - the boy and girl - BOTH - lived in the Native American community for at least 4 years before this well-to-do dominant society couple decided to adopt.
Think the children had an environment they knew better before they were "ripped" out of it by a society that has no friggin' idea about Native American culture/heritage/traditions/history - 'specially since that society has done it's damnedest to eliminate Native Americans 'cause we're "different".
"Kill the Indian - Save the Child"????? Bullshyte. "Make everybody "white" is more like it.
Those no good whites! / S
If everything was all hunky-dory where they were at, why on earth would they ever be put up for adoption?
For Christ's sake, stop acting as if the couple ONLY adopted the child because they are white and affluent.
Maybe they love kids and wanted to provide a better life for these kids.
Where was the tribe when the mother was struggling?
From the Indian Boarding Schools, the Government Adoption Project, the Tribal Termination act, and the Indian sterilization era, all have had only this end game assimilate us until there are no Indians left.
In fact, it was the US government that introduced the blood quantum requirement to ID Indians. The result of that would be to introduce a law that would eventually eliminate us as a race.
See 1.1
Didn't say "whites" - said "dominant society".
Yeah - that's the ticket - "Those no good dominant society people" (without the "/S" tag).
That'll work.
Of course you didn't. You are better than that. That's why you were selected to defend what can't be defended.
No, 1st simply has the ''talking stick'' currently and it is being defended you simply don't want to accept it.
You've got the ball now. Let's see you run with it.
Selected? No one selected 1st. He is just the most knowledgable on this topic.
That is my quote not Kavika's.
You know Perrie, the way I always correctly read everything around here.
He is just the most knowledgable on this topic.
That I agree with.
I'm sure it is your's.
Vic, stop making this about race. 1st clearly said a "well-to-do dominant society couple". Indians invite other races into their society. It is about their culture.
It is about the well-being of a child.
Of course, the well being of the child is important, and it can be met with other family members. But it is also about president. The whole reason that the welfare act exists is so that Indians don't lose their youth to people who want to adopt but can't find babies, and use Indian children as a resource.
Well, you got that wrong big time.
I read it twice now.
Where was the tribe when the state took the kid? Where was the support for the mother from the tribe?
The only argument against this foster couple is race. How can any of this possibly not be about race?
Well, since the birth mother was not very fit for parenting, are you claiming that culture/heritage/traditions/history count for more than the child's well-being? That is unusual to say the very, very least.
I am sure damn sorry you consider it 'ripping' when a child is removed from an unfit parent.
Kinda like that each state is "supposed to", under the law, have "Experts" on Native American culture/traditions/history/heritage so they can,working with Nation/Tribe "Experts" to ensure the "best" decision favoring the child is made.
Texas has shown that their "expert" isn't.
The state acted in the best interests of the child. I am not sure the tribe is doing that.
Shipping a kid off to some great aunt he barely or doesn't know or someone else he doesn't know at all seems to be punitive to the child.
I fail to see how that is in the best interests of the CHILD.
If putting these kids with a stable, affluent, two parent family that loves them enough to fight for them is not "favoring the child", we need to officially abandon the concept of "affluent white privilege".