The Supreme Court will this week hear the case of a Texas family who are at risk of losing one of their two adopted Native American children because a federal law gives tribes “race-based” priority in custody disputes.
The Haaland v. Brackeen case combines litigation from a handful of other families and several interested states, including Texas, where Chad and Jennifer Brackeen live with their children. Meanwhile, the tribes defending the law warn that if the Brackeens win, the case could have far-reaching consequences that would undermine their sovereignty.
At the center of the controversy is the Indian Child Welfare Act (ICWA), a 1970s law designed to protect Native American children in state custody cases.
“There are Americans out there who are dying to help these children, and Indian Child Welfare Law says they can’t because their skin color is the wrong color,” Timothy Sandefur, an assistant researcher at the libertarian Cato Institute, told Fox News Digital.
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“This is outrageous and unconstitutional,” he said. Sandefur wrote a brief for the Goldwater Institute supporting the ICWA crackdown.
ICWA was a response to the high rates of Indigenous children being adopted by non-tribal members – often with little due process and wrongly.
It prioritizes the placement of Native American children with extended family members, members of their tribe and, if this is not possible, with another Native American family. Exceptions for “good cause” are allowed but not defined.
Tribes argue that their children are key to their continued existence as political entities and that their unique status under US law means that laws directed at tribes are not race-based.
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“Supreme Court precedent is that Native American tribes are political groups of people, they are not racial groups of people,” Chrissi Ross Nimmo, the assistant attorney general for the Cherokee Nation, told reporters last month. “Tribes determine citizenship…just like countries.”
But critics of the law say it defeats a child’s best interests, including staying with adults they have known for some time, in favor of placing a child with someone of the same or a similar race.
“No other federal law is triggered by a child’s biological eligibility for tribal membership,” Sandefur said. “Every other Indian law in the books applies to a person because that person is a member of a tribe.”
“Congress’s racial discrimination is ‘most evident’ in ICWA’s third placement preference…which every ‘Indian family’ unabashedly favors.”[y]’ by each of the 574 tribes through each non-Native American family,” the Brackeens’ attorneys said in a brief.
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Chad and Jennifer Brackeen’s journey to the Supreme Court began when the Navajo Nation tried to place their adopted son, referred to in court documents as ALM, with unrelated tribesmen living out of state.
The family to whom the Navajo Nation wanted to send ALM backed out of the case, and the Brackeens won custody. But their adoption saga continued after ALM’s mother gave birth to his half-sister named YRJ
The biological mother supported the placement with the Brackeens. But the Navajo Nation tried to place YRJ “in another state hundreds of miles away with either a great-aunt or an unrelated Navajo couple,” according to the Brackeens’ attorneys.
This case is still pending a state court in Texas. But attorneys for the Brackeens say the outcome of their Supreme Court case that resulted from their fight to obtain ALM will likely decide the outcome of YRJ’s case and, by extension, their family’s future.
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“Our children are young, our eldest is 13, little sister is 4.5 years old. So to a certain extent, only the elders really know what we’re going through,” Chad Brackeen told Fox News Digital. “And it is our responsibility to shield our children at this point of uncertainty that she could eventually be kidnapped, snatched from our home and relocated to other states.”
Another important issue, Sandefur said, could arise over whether the ICWA unconstitutionally seizes state courts to implement federal policy.
“ICWA is the only federal law in existence that is enforced solely by state officials. Federal agencies are not enforcing ICWA,” Sandefur said. “But our federal system under our Constitution prohibits Congress from forcing states to enforce laws against their will.”
But lawyers supporting tribal leaders say the ramifications for Native Americans could go well beyond adoption disputes if judges rule against them.
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Kate Fort, director of the Indian Law Clinic at Michigan State University, called the case a “face attack on tribal sovereignty.” She also said that this “could lead to a fundamental rethinking of how Congress may or may not pass legislation for tribes.”
Fort said other litigants suing an alleged Indian gambling monopoly in Washington state were already mimicking the arguments used in the Brackeen case.
The hearing is scheduled for Wednesday, with an extended hearing expected to last almost two hours due to the number of parties.
Unlike many politicized cases, the court must not split directly along ideological lines. Tribal law is an issue where judges sometimes make unusual alliances to decide a case.
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“Many people are particularly interested in how Judge Gorsuch will view this case because he has a reputation for being very sensitive to … Indian legal issues,” Sandefur said.