You may have heard that the Supreme Court of the United States will be taking up Brackeen v. Haaland, with several amicus briefs having been filed and oral arguments likely commencing in November 2022. But what is Brackeen about? What is the Indian Child Welfare Act and why could this decision be so monumental to American adoption law?
First, a bit of history. A law called The Civilization Fund Act was passed by Congress in 1819, which attempted to enforce the so-called “civilization process” of Native Americans. In the late 19th century, the United States government began establishing institutions called “American Indian Boarding Schools” or “American Indian Residential Schools.” Between 1860 and 1978, approximately 357 of these schools operated across 30 different states.
The first boarding school was established by the United States Bureau of Indian Affairs in 1860 on the Yakima Reservation in Washington. These schools were not, however limited to Native American reservations, and the first off-reservation boarding school was opened in Carlisle, Pennsylvania in 1879. That school was founded by Richard Henry Platt, who based his education “program” off of experiments done on Native American assimilation projects conducted on imprisoned and captive Indigenous peoples.
The United States Government forcibly, and often without consent, removed Native American children from their parents, homes, and tribes and placed them in these mandatory schools. The children were given Anglo-American names, not allowed to wear their traditional clothing, not allowed to speak their native language, and not allowed to practice their native religion. The children’s hair would also be forcibly cut, despite – or perhaps because – hair is sacred to many Indigenous peoples. The schools sought to forcibly assimilate Native American children into European-American culture.
The conditions at these boarding schools could be horrific. Physical and sexual abuse was rampant, and children were often punished through beatings and heavy labor. They were also forced to watch disturbing films showing Native Americans being killed. Food and medical attention were often withheld, letting diseases like tuberculosis and measles run rampant. Children would then be buried in school cemeteries, and often parents were not even informed of their death until after the burial. Those who did survive carried significant trauma for the rest of their lives, and the effects of these schools can still be observed today; for example, there are Native languages that are both extinct and close to extinction due to generations of children not being allowed to speak to them.
In the 20th century, the popularity of the boarding schools began to decrease, but Native American parents did not gain full legal right to deny their child’s placement at an off-reservation school until 1978 – with the passing of the Indian Child Welfare Act, or ICWA. ICWA established federal standards for the removal and placement of Native children, with the goal of trying to keep children connected with their families and Tribes. It ensures that Native American Tribes have sovereignty and jurisdiction over their members who reside on Tribal land.
One facet of the ICWA concerns adoption of Native American children. It sets guidelines and specific requirements that must be met when a Native American child is removed from their parent’s home and placed into foster care or up for adoption. Simply put, ICWA prioritizes placement of Native American children, for both foster and adoptive families, with other members of their Tribe.
That is where Brackeen v. Haaland comes in. Chad and Jennifer Brackeen received a foster placement of a 10-month-old Native American child in June 2016. Both of the child’s parents had their parental rights terminated a year later. Under ICWA, the Navajo Nation then stepped in, seeking to place the child with a Navajo family. The Navajo Nation initially lost the Court battle, and the Brackeens were able to adopt the child. The Brackeens then sought to adopt the child’s sister, but the child’s extended family stepped in. A federal lawsuit was filed in state court by the Brackeens, along with several other couples and three states, seeking to overturn the ICWA, and, in 2018, a federal district court in Texas held that the ICWA violates the United States Constitution – the first time any federal court has made such a finding.
Appeals were brought by the United States federal government and four Native Tribes to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit Court reversed the underlying decision based upon the legal precedent United States v. Antelope, which held that “federal legislation with respect to Indian tribes … is not based upon impermissible racial classifications.”
At the request of one of the judges, however, the decision was heard en banc, meaning that all the judges on the court hear and decide a case, rather than the initial three-judge panel. In its en banc opinion, the Fifth Circuit ruled that while parts of the ICWA were constitutional, the provisions regarding adoptive placement and preference of Native children with Native families violated the Equal Protection clause of the United States Constitution. The Fifth Circuit’s decision was 325 pages long.
After this decision, the United States Federal Government, the State of Texas, the Cherokee Nation and the Brackeens all filed petitions for writ of certiorari to the United States Supreme Court. As of August 23, 2022, a total of 21 amicus briefs have been filed in support of upholding the ICWA, by both Native and non-Native organizations.
It is unknown how the Supreme Court of the United States will rule on this issue. Challengers to the ICWA contend that the law racially discriminates against prospective non-Native parents and that its provisions regarding preferred placement with Native parents is unconstitutional. Proponents of the ICWA argue that this case has enormous implications not only to Native children and the preservation of Tribes and culture, but also to Tribal sovereignty as a whole. They also argue that placing children with extended families or within their communities is already best practice for the placement of children of any ethnicity. Depending on what is ultimately decided, the matter will have far-reaching implications for adoptions around the United States.