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Supreme Court considers fate of ICWA, the landmark Indian adoption law : NPR


Wednesday, the U.S. Supreme Court will hear a challenge from Texas and several Native American adoptive families challenging the Indian Child Welfare Act.

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Image by Samuel Corum / Getty


Wednesday, the U.S. Supreme Court will hear a challenge from Texas and several Native American adoptive families challenging the Indian Child Welfare Act.

Image by Samuel Corum / Getty

The U.S. Supreme Court heard arguments Wednesday in a case that turned some prospective adoptive parents and the state of Texas against the Indian Child Welfare Act — a federal law intended to prevent children from Native Americans were separated from their large families and tribes.

This is a case that, more than usual, has gone down in American history. It is also a case that, more than usual, will resonate with nine judges, seven of whom are parents, including two with adopted children.

A brief history of the law

In 1978, Congress, after many hearings, discovered that public and private agencies had taken hundreds of thousands of Indian children from their homes. home, sometimes by force. These agencies then placed the children in educational institutions or with families with no tribal connections.

Chuck Hoskin Jr., head of the Cherokee Nation, said: “About a third of Indigenous children are adopted through … child welfare agency operations. “And of that group, about 85% were adopted outside of tribal families.”

The tribes considered these actions a threat to their very existence, and Congress agreed. In response, Congress passed the Indian Child Welfare Act of 1978, known by its abbreviation “ICWA.”

ICWA has established minimum federal standards for removing Indigenous children from their families and requires state courts to notify tribes when an Indian child is removed from his or her home. outside the reserve. It also implements a framework for the foster and adoption positions in question in this case. The framework requires first to be given to one member of the child’s extended family, then to other members of the tribe, and if neither is available, a home with a tribal family. other lost.

The central case of the challenge

However, now, the state of Texas and some Indian adoption families are challenging the law in court. They argued that it was an unconstitutional racial preference, and that federal law unacceptably infringed upon the state’s autonomy.

Jennifer and Chad Brackeen, from the Dallas Fort Worth area, are among a pair of prospective adoptive parents who are challenging the law. The couple raised a child born to a Navajo mother and a Cherokee father, and after the native mother’s paternity was terminated by the state, the Brackeens adopted the boy, with tribal consent. When the same biological mother with another child, a girl, joined the foster system, the Brackeens moved her from another foster home to their home. Now, they are also seeking to adopt her in the face of opposition from the tribe and the child’s great aunt.

Jennifer Brackeen, an anesthesiologist explains: “We felt like her closest living relative was her brother… that’s why we were trying to get her to come to us. us,” explains Jennifer Brackeen, an anesthesiologist.

Chad Brackeen, a resident, said: “It breaks our heart to have a law here that says it’s better for her to live in a tribal house, any tribal house… before when she was allowed to stay in our house with her brother,” added civilian Chad Brackeen. Engineer at home with children.

Brackeens attorney, Matthew McGill, said: “The real injustice of [ICWA] is that it deprives children of their personal judgment of their best interests, and it replaces… that test with this hierarchy of preferences. “

The views of the tribes

But the tribes say that the best interests of the child to be is being considered.

“ICWA does not preclude an individual assessment of the best placement for each child,” said Kathryn Fort, director of the Indian Law Clinic at Michigan State University. State courts do this type of review “every day,” she said, adding, “I don’t personally know of a state court judge who could be comfortable being told they’re not authorized to do it. personal assessment.”

But for an Indian child, Fort said, that personalized assessment consists of examine the child’s relationship with his or her kin, language, religion, and tribal traditions.

“A child is not separate from its tribe,” she added. “That child is sacred to that tribe.”

Representing the Brackeens at the Supreme Court, attorney McGill will tell the judges that the ICWA provisions could be considered an unconstitutional racial classification.

“It classifies children based on whether the child is Indian or non-Indian,” he argues. “And then it classifies prospective parents based on whether they are Indian or not.”

The Biden administration, like previous administrations of both political parties, has defended the rule of law. Citing a series of precedents dating back to the republic’s early days, the government says that the ICWA makes classifications based not on race but on affiliation with tribal groups. And according to the Constitution, those tribal groups are separate sovereign states, essentially a political group.

Attorney Ian Gershengorn, representing the tribes, noted that “from the earliest moments of our constitutional history, Congress has legislated for the Indians”, and thus he maintains , “the idea that doing so somehow violates the Equal Protection Clause or is racially unacceptable to me, the classification seems incomparable to the text” of the Constitution. France.

Family’s argument

The Constitution actually gave Congress almost complete legislative power on matters related to commerce and relations with the Indian tribes. That constitutional provision is known as the India Terms of Trade. But the Brackeens countered that their case was about a child, identified as YRJ, not about 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 every other child born in the state of Texas.”

The state of Texas is also challenging ICWA on separate grounds. The state considers federal statute to be unconstitutional to compel the state to perform its federal duties and to do so is essentially a violation of the state’s own statute regarding adoptions.

Attorney Gershengorn rejected that argument, noting how in many areas of the law Congress requires states to comply with federal mandates. For example, he points to a federal law that tells states that they cannot make custody decisions based solely on the fact that one of the parents is a deployed military member. Or, he says, consider the immunity that Congress has given gun manufacturers in state courts. “Nobody thinks it matters,” that a state court is forced to do what Congress has said, he remarked.

There is no way to know how many thousands of Indigenous children were removed from their biological parents’ homes, or how many children were involved in subsequent adoptions. But Professor Fort said most of these cases are Not controversial, noting that nationally, from 2015 to 2021, there were only 254 appeals.

That is no consolation for those involved in adoption disputes for months or years, nor is it consolation for the more than 500 Indian tribes who view the incident. was a foot in the door that could lead to other cases challenging the rights of the Indians regarding land and water. , oil, minerals and highly profitable gaming rights.

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