The Supreme Court will soon hear oral arguments in a challenge to the constitutionality of the 1978 Indian Child Welfare Act, a measure that makes it difficult to remove Native American children from their parents, tribes, and heritage.
The law was passed nearly 45 years ago to prevent future instances of abuse against Native American children, as historical records indicate that thousands of Native children were previously removed from their homes, often by force, and placed with families who had no relationship to their tribes of origin.
As it stands, priority for adopting Native children is given to extended family members, tribal members, and, if no other options are available, another Native family. The law states that exceptions for “good cause” are permissible but are not directly defined, an ambiguity that several families are touting as one reason for the Supreme Court to reexamine the ICWA.
One of the families petitioning the high court include Chad and Jennifer Brackeen, a couple who almost had their adopted Navajo Nation son taken away from them due to the 1978 law.
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The Brackeens started fostering their adopted son, identified in court documents as A.L.M., in 2016, due to his birth mother’s inability to care for him. Leadership in the Navajo Nation identified A.L.M. as a tribal member more than a year later and attempted to place him with other tribal members from an unrelated family in a different state, the family told Fox News.
The family to whom the Navajo Nation sought to send A.L.M. eventually stepped back from the proceedings, allowing the Brackeens to win custody. However, their troubles did not end, as A.L.M.’s Navajo mother gave birth to his half-sister, Y.R.J.
Plans to place Y.R.J. with the Brackeens were supported by the biological mother, but the Navajo Nation opted to put her “in another state hundreds of miles away with either a great aunt or an unrelated Navajo couple,” according to the lawyer for the Brackeens.
The case of Y.R.J. is still playing out in a Texas state court. However, attorneys for the Brackeens believe a decision in the Supreme Court case, which stemmed from A.L.M., will likely directly affect the case for the sister.
Attorneys for the plaintiffs go as far as to claim the 1978 law amounts to “racial discrimination” in the way it has been used in attempts to relocate A.L.M., while tribes defending the law say such claims ignore that tribes are not treated as racial groups but as political entities.
“Simply, for the court to overturn ICWA in this case would be a devastating blow not just to the welfare of our children but to congressional authority, legal precedent, and to the basic foundations of federal Indian law,” Cherokee Nation Principal Chief Chuck Hoskin Jr. said Monday during a virtual briefing over the high court case, Haaland v. Brackeen.
In addition to the families who sued to fight the ICWA, three states, including Texas, Louisiana, and Indiana, are challenging the federal law, arguing it violates the equal protection principles and alleging it gives unfair favor to one of the parties involved on the basis of race.
Cherokee Nation Deputy Attorney General Chrissi Ross Nimmo accused “outside forces” of attempting to use the ICWA to “go after other things that tribes have that they see as commercially beneficial or money makers,” arguing that overturning the law would mark another damaging blow to tribal sovereignty.
An unfavorable ruling from the perspective of tribal leaders would bring into “question other areas of federal Indian law, and quite frankly, the modern day existence of Indian nations in our country,” Nimmo added.
Hoskin and leaders from 500 other tribes that rely on the law aren’t backing down from accusing the challengers of being mistaken in their constitutional history.
“The U.S. Constitution recognizes tribes as sovereign nations,” Hoskin said. “And courts have repeatedly recognized that tribal citizenship is a political classification.”
“That may be an inconvenient fact for those who want to convince the court that ICWA violates the Constitution’s equal protection clause, but neither the facts nor precedent are on their sides,” Hoskin added.
But for the Brackeens, they just want to see their two adopted children remain together.
“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,” Chad Brackeen said. “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.”
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Justices will hear oral arguments over the case on Nov. 9.
The Washington Examiner contacted an attorney for the Brackeens.
