Supreme Court considers fate of ICWA, India’s landmark adoption law : NPR
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The U.S. Supreme Court hears arguments Wednesday in a case that pits several prospective adoptive parents against the state of Texas over the Indian Child Welfare Act — a federal law aimed at preventing Native American children from being separated from their extended families and their tribes.
It’s a case that, more than usual, is steeped in American history. It is also a case that, more than usual, will resonate with the nine judges, seven of whom are parents, two of whom have adopted children.
A brief history of the law
In 1978, Congress, after lengthy hearings, found that public and private agencies had removed hundreds of thousands of Indian children from their houses, sometimes by force. These agencies then placed the children in institutions or with families that had no tribal ties.
“About one-third of Indigenous children were adopted through the actions of child welfare agencies,” said Cherokee Nation Chief Chuck Hoskin Jr. “And of that group, about 85% were adopted out of tribal families.”
The tribes saw these actions as a threat to their very existence, and Congress agreed. In response, Congress passed the Indian Child Welfare Act of 1978, known by the acronym “ICWA”.
The ICWA established minimum federal standards for removing Native children from their families and required state courts to notify tribes when an Indian child is removed from their home off a reservation. It has also put in place a framework for foster and adoption placements that is at issue in this case. The framework requires that preference be given first to a member of the child’s extended family, then to other tribe members, and if none of these are available, a household with a different tribal family .
The case at the heart of the challenge
Now, however, the state of Texas and several families who adopt Indian children are challenging the law in court. They argue that this amounts to unconstitutional racial preference and that federal law impermissibly encroaches on state autonomy.
Jennifer and Chad Brackeen of the Dallas Fort Worth area are among the prospective adoptive parents challenging the law. The couple adopted a baby born to a Navajo mother and a Cherokee father, and after the native mother’s parental rights were terminated by the state, the Brackeens adopted the boy, with the consent of the tribe. When the same biological mother had another child, a girl, who entered the foster system, the Brackeens had her transferred from another foster home to their home. Now they are looking to adopt him as well, despite the objections of the tribe and the child’s great aunt.
“We feel like her closest living relative is her brother…that’s why we insisted that she be placed with us,” says Jennifer Brackeen, an anesthesiologist.
“It’s heartbreaking to us that there are laws here that say it’s best for her to live in a tribal house, any tribal house…before she’s allowed to stay in our house with his brother,” adds Chad Brackeen, a civilian engineer who stays home with the kids.
Brackeens lawyer Matthew McGill said: “The real injustice of [ICWA] it’s that it deprives children of an individualized assessment of their own best interests, and it replaces that…test with that hierarchy of preferences.”
The tribal point of view
But the tribes say the best interests of the child are to be considered.
“The ICWA does not preclude an individualized assessment of the best placement for each child,” says Kathryn Fort, director of the Indian Law Clinic at Michigan State University. State courts do this kind of assessment “every day,” she says, adding, “Personally, I don’t know of a state court judge who would be comfortable being told that he is not authorized to make an individualized assessment”.
But for an Indian child, says Fort, this individualized assessment understand consideration of the child’s relationship with his or her parents, language, religion and tribal tradition.
“A child is not separated from his tribe,” she adds. “This child is sacred to this tribe.”
Representing the Brackeens on the Supreme Court, attorney McGill will tell the justices that the ICWA provisions constitute unconstitutional racial classification.
“He categorizes children as Indian or non-Indian,” he explains. “And then he classifies the intended parents according to whether they are Indian or not.”
The Biden administration, like previous administrations of both political parties, defends the law. Citing a series of precedents dating back to the early days of the republic, the government says the ICWA establishes classifications based not on race but on ties to tribal groups. And under the Constitution, these tribal groups are separate sovereign nations, essentially a political group.
Lawyer Ian Gershengorn, representing the tribes, notes that “from the earliest moments of our constitutional history, Congress has legislated for Indians”, and therefore, he maintains, “the idea that to do so in any way violates in any way the protection clause equals or constitutes impermissible racial discrimination”. classification seems to me quite simply impossible to reconcile with the text” of the Constitution.
The family argument
The Constitution gives Congress almost complete power to legislate on matters concerning trade and relations with Indian tribes. This constitutional provision is called the Indian Commerce Clause. But the Brackeens counter that their case is about a child, identified as YRJ, not the trade.
YRJ “is not the property of the Indian tribe,” said attorney McGill. “She is a citizen of the United States and also a citizen of the State of Texas…there is no reason why this child should not have all the same rights as all other children born in the State of Texas. “
The State of Texas is also challenging the ICWA on separate grounds. The state argues that federal law unconstitutionally requires the state to carry out a federal warrant and in doing so essentially violates the state’s adoption regime.
Attorney Gershengorn rejects this argument out of hand, noting that in many areas of law, Congress tells states how they must comply with a federal mandate. He points, for example, to a federal law telling states they cannot determine custody of a child solely on the fact that one of the parents is a deployed military member. Or, he says, consider the immunity Congress has granted arms manufacturers in state courts. “Nobody thinks it’s problematic” that a state court is obligated to follow what Congress has said, he observes.
There is no way of knowing how many thousands of Aboriginal children are removed from the home of a biological parent, or how many are involved in subsequent adoptions. But Professor Fort says most of these cases are not controversial, noting that nationwide, from 2015 to 2021, there were appeals in just 254 cases.
This is no comfort to those embroiled in months or years of adoption disputes, or to the more than 500 Indian tribes who see this case as a foot in the door that could lead to other cases. contesting Indian rights to land, water, oil, minerals and highly profitable game rights.