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Adoption protections for Native American children will get high court attention

A 1978 law designed to protect the breakup of Native American families is in on deck for oral arguments next term.

WASHINGTON (CN) — The Supreme Court agreed Monday to hear a challenge to a 40-year-old law that prioritizes Native American families for custody, foster care and adoption cases involving children from their communities.

Defending the rule known as the Indian Child Welfare Act, several tribes and the U.S. government maintain that it has helped tens of thousands of Native Americans protect their families and their culture in a country that has historically had little regard for either. 

Indeed, roughly one-third of Native American children were being removed from their families by state and federal agencies and being placed with mostly non-Native American, white families or in boarding schools before 1978, when the law was passed, according to studies that the federal government cited for the court. Researchers behind the studies have said that the common perception for the removals was ignorance of tribes’ social norms and values, or possibly for reasons of poverty.

The tribes and federal government hold up the system as a critical barrier to keeping Native children from disappearing into the child welfare system, lost to their families and their tribes.

“Although ICWA has ‘helped stem the widespread removal of Indian children from their families and Tribes’ since its enactment 40 years ago, Indian children ‘are still disproportionately more likely to be removed from their homes and communities than other children’ today,” Brian Fletcher wrote in the government's brief, having stood in as acting solicitor general last year. “ICWA’s provisions thus remain essential and are frequently applied in state courts across the country. Those provisions include the minimum standards set forth … [to counteract] ‘the unwarranted removal of Indian children from Indian families due to the cultural insensitivity and biases of social workers and state courts.’”

But the scheme has its detractors, with the states Texas, Louisiana, Indiana leading the charge here alongside seven individual plaintiffs. One of the plaintiffs is a mother who wishes for her Indian biological child to be adopted by non-Indians. Three couples trying to adopt or foster Indian children are parties to the case as well.

When the case began more than five years ago, the challengers faulted the law's failure to consider the emotional bonds between children and their caregivers. Texas Solicitor General Judd Stone wrote in a brief to the high court that the Lone Star State does not tolerate making decisions based on race.

“In its Family Code, Texas forbids its courts from denying or delaying an adoption ‘on the basis of race or ethnicity of the child or the prospective adoptive parents.’ ICWA forces Texas to do just that, pressganging state officials into setting up and enforcing a distinct federal child-custody regime at odds with state law,” the brief states.

While a federal judge ruled in 2018 that the law was race-based and outdated, a divided three-judge panel of the Fifth Circuit reversed that ruling in 2019. The appeals court reheard the case en banc, however, and the complex, 325-page ruling that resulted struck some parts of the law, including one that says “active efforts” must be made to maintain a relationship with or reunite Native children with their families.

The judges also took issue with provisions of the law that required states to keep track of where the children were placed. Another part of the law says before Native children can be placed outside of their tribal communities, they must first be offered the opportunity to stay with their extended family and then members of their tribe or foster homes approved by the tribe. On this issue, the Fifth Circuit judges were deadlocked.

Jason and Danielle Clifford, a white Minnesota couple fighting the law, say their family has been “literally torn apart” after they were blocked from adopting a Native American girl from White Earth Nation who came to live with them after several different foster care placements.

Another couple, Chad and Jennifer Brackeen, white evangelicals from Texas, were denied the right to adopt a baby belonging to both the Navajo and Cherokee tribes even though the child’s parents had given up their parental rights after the state located a potential home with a Navajo family in New Mexico. The Brackeens petitioned and were later able to adopt the boy and have since also obtained custody of the boy’s younger sister, despite objections from Navajo family members who wanted to take her in.

Their lawyers call it unconstitutional that families should face increased scrutiny just because of the race of the children.

“They have been and are required to satisfy statutory hurdles in their attempts to adopt A.L.M. and Y.R.J. that exist solely because ICWA classifies these children as Indian children,” Matthew McGill with the firm Gibson Dunn wrote on behalf of the Brackeens in a December brief. “Individual Respondents are injured because ICWA’s placement preferences treat them unequally. The preferences categorically placed Individual Respondents last in line to adopt or foster a child because they were not a member of any of the preferred groups."

The case is the only one granted a writ of certiorari in Monday's order list, among dozens of denials. Per their custom, the justices did not issue any statement about their rationale. Many of the parties involved in the case have not yet returned a request for comment.

“This case is about preserving the Brackeens’ family and, especially, the continued well-being of the little girl that they are seeking to adopt, who has thrived as part of the Brackeens’ family now for more than two years,” McGill at Gibson Dunn said in a statement this afternoon. “We are pleased that the Court has chosen to review all of the important constitutional issues raised by the parties.”

The case is expected to be heard next term, which begins in October, and could perhaps be one of the first for a new high court justice.

On Friday, the Biden administration nominated D.C. Circuit Judge Ketanji Brown Jackson to fill the vacancy on the Supreme Court that will be created with Justice Stephen Breyer’s retirement this summer.

If confirmed, Jackson will be the high court’s first judge who is a Black woman. At age 51, lifetime appointment means she will likely serve for decades. 

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