WASHINGTON — After Jason and Danielle Clifford discovered they couldn’t have children, they decided to become adoptive parents so they could help a child in their community.
In 2016, the Twin Cities couple welcomed a 6-year-old girl, a member of the White Earth Band of Ojibwe, whose mother and father had lost parental rights due to drug use.
The Cliffords fostered the child for about 18 months and sought to adopt him. But the child’s maternal grandmother, who had fought for custody of her granddaughter, ultimately prevailed in the fight.
A member of White Earth who lives in Minneapolis, the grandmother was able to win the child back thanks in large part to the help of her tribe and the Indian Child Welfare Act – a 1978 law aimed at making removal more difficult. children from their Native American families and communities. .
That Minnesota custody fight has become part of a larger case that has gone to the Supreme Court, which will hear arguments on the constitutionality of India’s child protection law next month.
The case, known as Brackeen versus Haaland, galvanized Indian County. The tribes fear the Supreme Court will overturn their right to oversee foster care in cases involving Indigenous children. The tribes also fear the judges’ decision on the case will go much further, undermining their special relationship with the federal government and stripping them of their sovereignty.
The case is a priority for tribal organizations nationwide — including every tribe in Minnesota and nearly 500 others across the country — which have filed amicus briefs in support of the Indian Child Welfare Act.
It’s an emotional as well as a legal issue. Congress passed the law in response to the disproportionately high rate of forced removal of Indigenous children from their traditional homes and primarily from Native American cultures. Testimony showed that in some cases the per capita rate of Aboriginal children in foster care was almost 16 times higher than the rate of non-Aboriginal children.
Witnesses stated that in 1971 and 1972, almost one quarter of all Minnesota Indian children under the age of one have been adopted.
“Always dealing with the trauma”
“Dismantling any of the provisions of the Indian Child Welfare Act would signal a return to federal policies of cultural genocide,” said Angelique EagleWoman, director of the Native American Law and Sovereignty Institute at the Mitchell Hamline School of Law.
EagleWoman, who is Dakota and a citizen of Sisseton-Wahpeton-Oyate, said her father and grandmother were sent to non-Indigenous boarding schools. These schools were established by religious groups and the federal government to educate Indian children – but also to encourage them to assimilate into white society.
EagleWoman said Native American children were vulnerable to all kinds of abuse in boarding schools, which in the 1950s and 1960s became day schools. She added that the “abduction” of these children also had an impact on their parents, aunts, uncles and grandparents, who were powerless to stop the kidnappings.
“They’re still dealing with the trauma,” EagleWoman said.
Congress passed India’s Child Welfare Act in response to these concerns. The law requires the tribal court to first try to place a Native American child with an immediate family member. If this is not possible, the adoptive parents must be members of the tribe. And if these cannot be found, the child must be placed in a tribal institution.
“The statute established that the best interests of the child were with the tribe,” EagleWoman said. “But he’s been attacked since he was adopted.”
Groups that filed briefs on behalf of white parents who wanted to adopt Indigenous children included adoption organizations and adoption attorneys, including the Academy of Adoption and Assisted Human Reproduction Advocates, who argued that “the court should recognize a child’s fundamental right to a stable, secure, and permanent home and conclude that such a right overrides the statutory rights and interests of the child’s tribe”.
A number of conservative organizations, including the Goldwater Institute, have also urged the Supreme Court to strike down India’s Child Welfare Act.
Meanwhile, EagleWoman and other tribal law professors, child psychiatrists and 87 members of Congress – including Minnesota Democratic Sens. Amy Klobuchar and Tina Smith and Reps. Angie Craig, D-2n/a District, and Betty McCollum, D-4e District – weighed in with briefs in favor of protecting the law.
“As a member of the Senate Indian Affairs Committee, my job is to ensure that the federal government fulfills its legal, trust and treaty responsibilities to tribes and Indigenous peoples and respects the sovereignty tribal,” Smith said. “I was proud to sign the bipartisan amicus brief to defend (the Indian Child Welfare Act) and urge the court to uphold tribal sovereignty and the federal government’s responsibilities to the tribes.”
Danielle Clifford said a court order prohibited her from speaking about the case, but she said there was “much more to the story” than has been made public. The Cliffords’ lawyer, Lochlan Shelfer of the massive law firm Gibson Dunn, declined to comment, and the White Earth Band of Ojibwe did not respond to calls and emails seeking comment.
The path to the Supreme Court
The path traveled by the battle for custody of the White Earth child to reach the Supreme Court is complicated.
After the Hennepin County District Court rejected the Cliffords’ adoption offer and the child’s grandmother won custody, the Cliffords became plaintiffs in a lawsuit filed by a couple in Texas whose adoption of a Navajo child was derailed by Indian child welfare law. A Nevada couple who have fostered a child since birth were also plaintiffs in the case, as were the states of Texas, Louisiana and Indiana.
The Texas court sided with the plaintiffs, and the federal government appealed the decision to the 5e District Court of Appeals.
Initially, a panel of three judges in this court found that India’s Child Welfare Act was not – as the plaintiffs had argued – an unconstitutional race-based law, but a law based on political considerations. He also rejected arguments made by the states that were plaintiffs in the case that the law “requisitioned” state agencies and officials to enforce federal law.
The Court of Appeal concluded that under the supremacy clause, the federal government merely regulated the adoption and placement of Native American children.
But a judge asked for a bench decision, or for all the judges of the seat of the 5e Circuit to weigh. The result was a split decision that didn’t sit well with either party in the case.
In September of last year, the Justice Department, tribes and individual plaintiffs — including the Cliffords — asked the U.S. Supreme Court to review the Fifth Circuit’s decision.
The Supreme Court allowed all the motions and consolidated them into Brackeen vs. Haaland. The court will hear oral arguments in the case on November 9.
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