Jennifer and Chad Brackeen welcomed Zachary into their Texas home as foster parents in 2016, and a year later when his parents’ rights were terminated, they sought to adopt him.
They had custody. They had the support of Zachary’s parents.
What they didn’t have was Navajo blood.
Zachary’s biological mother is Navajo and his biological father is Cherokee. And under the Indian Child Welfare Act (ICWA), decisions regarding adoption – which in other circumstances are made by state courts or governments considering the best interests of the child. child – are transferred into tribal hands when a Native American child is involved.
Now the Brackeens are challenging the ICWA as unconstitutional, and on November 9 they will take their case to the Supreme Court, along with two other non-American Indian families in similar circumstances.
“We want the law to support putting all children into forever loving homes,” the Brackeens said in a statement to The Washington Times. “During our journey from adoptive parents to adopting a sibling, we have encountered a law that ignores both the best interests of children and the wishes of their biological parents. This is the law we are working to change so that all children, regardless of race, can have a loving forever home.
The tribes counter that there is a long history that informs the law, which gives preference to tribal placement when it comes to Indian children who live far from tribal lands.
In a brief to judges, a group of nearly 500 Indian tribes pointed to forced assimilation in the 19th century, which included the removal of children from reservations and their placement in government-run boarding schools, many of which were later encouraged or adopted by non-Indians. families.
Social workers making placement decisions often had a bias against Native American homes, and as a result, up to 90% of Indian child placements were in non-Indian homes.
The tribes said the ICWA, enacted in 1978, sought to rewrite this negative presumption, giving tribes another chance to assert their own desire to have Indian children raised by tribal families.
“The ICWA remains one of the most important pieces of Indian federal legislation ever enacted,” the tribes told the judges.
US Census Bureau data from a decade ago indicates that approximately 18,000 Native American or Alaska Native children were adopted under the age of 18. The National Indian Child Welfare Association estimates that 56% of these children were placed in homes outside their tribal communities.
President Charles Martin of the Morongo Band of Mission Indians called the Brackeens’ trial an “attack” on tribal families.
“Children are the future of our tribal communities,” said Mr. Martin. “We will not go back to a time when children were stolen from our community for no reason.”
The case raises thorny questions about ethnicity and identity, and joins a series of cases before judges this term dealing with fundamental issues of discrimination.
Last year, the United States Court of Appeals for the 5th Circuit generally sided with the Brackeen family, although judges were deeply divided on different aspects of the decision. For example, they found themselves deadlocked over the key issue of whether the law’s requirement that tribal placements be preferred violated the Constitution’s Equal Protection Clause.
Competing opinions from a single circuit begged the judges to weigh in.
“This confusion and dispute over the constitutionality of federal law would be problematic in any context, but is untenable in the sensitive area of parent-child relationships,” the attorneys for the non-Indian families said. “The legal uncertainty discourages foster and adoption families and leads inexorably to delays in the settlement of placement files, which deprives the children concerned of the stability essential to their well-being.
Matthew McGill and Mark Fiddler, the attorneys, said the ICWA was ensuring children were treated as “resources” of the tribes.
But President Tehassi Hill of the Oneida Nation told a press conference this month that children separated from tribal homes had lasting health effects by losing access to medical records and suffered “a identity crisis trying to figure out who your family is, where you’re from, medical history and community ties.
The law helps children avoid these situations, he said.
“India’s Child Welfare Act is an issue that maintains overwhelming bipartisan support,” Hill said.
The Biden administration is siding with the tribes in the matter. GOP-run states like Texas support families.
Zachary, or ALM as he is identified in court documents, was placed in foster care with the Brackeens when he was 10 months old after he was taken from his Navajo mother by Texas officials. She and the biological father voluntarily gave up their parental rights and supported the Brackeens in adopting their son.
But the Navajo Nation intervened in the legal proceedings, arguing that under ICWA the child should be placed with a tribal family. The Nation found a competing placement, and a Texas court suspended Zachary’s adoption, citing the ICWA.
The Navajo placement ultimately fell through, and the Brackeens finalized the adoption. But they have since struggled with the adoption of Zachary’s half-sister, even though the mother has maintained that the children are raised by the same family.
Another family involved in the litigation, Nick and Heather Libretti, sought to adopt “Baby O” in 2016, with the consent of her birth mother. But the biological father, identified in court documents as ERG, is a member of the Ysleta del Sur Pueblo tribe in El Paso, Texas. The tribe intervened in the adoption in an attempt to block the Libretti.
The two parties eventually reached an agreement and the adoption took place, but the Librettis say they are now wary of fostering Indian children in the future without more certainty on the path to adoption. .
A third family in the dispute, Danielle and Jason Clifford of Minnesota, sought to adopt ‘PS’ after being placed with them in 2016.
But Robyn Bradshaw, the girl’s maternal grandmother and member of the White Earth Band of Ojibwe, fought for custody, saying she helped raise the child from 2011 to 2014 and that PS deserved the to be placed with her.
Ms Bradshaw had been forced to leave her home and go to one of the government’s boarding schools as a child. She ended up running away. Her attorneys told the Supreme Court she was determined not to abandon her granddaughter to a similar experience.
Ms Bradshaw cleared some barriers with her criminal record and got certified as a foster carer so she could be placed.
Meanwhile, the tribe, which had initially said that the PS was not going to be registered as a member, backtracked.
With these developments, Minnesota removed PS from the Cliffords in 2018 and placed her and the grandmother under ICWA restrictions.
Ms. Bradshaw, in her filing, raised concerns that a ruling by the judges upholding the 5th Circuit decision could create an opening for PS’s placement to be challenged.
The case is Brackeen v Haaland.
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