Ruling on adoption could threaten Native American sovereignty

More than 40 years of federal protections establishing standards for the placement of Indigenous children in foster care and adoptive homes could be in jeopardy after the U. S. Supreme Court heard arguments for a case in November.

In Brackeen v. Haaland, three White couples wanted to adopt Indigenous children and say that the 1978 Indian Child Welfare Act ( ICWA) discriminated against them because of their race. The law was created and passed to equip tribal communities and nations with the power to intervene when their members become involved in child welfare cases, including requiring the government to do more to protect the child’s connection to their Indigenous community and culture by prioritizing placement with biological family members, tribal members or another tribal nation.

Although two of the three couples were granted full custody of the Native children they wanted to adopt, they say that ICWA made the adoption process unfairly difficult. Supporters of the law argue that the racial discrimination claim is patently false and worry that if the Supreme Court reverses any part of the law, it could have farreaching implications for Indigenous sovereignty.

Matthew Fletcher is a law professor at the University of Michigan, where he teaches and writes about federal Indian law and American Indian tribal law.

A member of the Grand Traverse Band of Ottawa and Chippewa Indians, he also sits as an appellate judge for a number of tribal nations ( including the Rincon Band of Luiseño Indians) and is the primary editor and author of the American Indian law and policy blog, Turtle Talk. He took some time to discuss ICWA, how it’s designed to work in protection of Indigenous communities, and how this case could impact Native American sovereignty. ( This conversation has been edited for length and clarity. )

Q

Can you talk a bit about what led to the creation of the Indian Child Welfare Act in 1978? What was happening in the years leading up to the drafting and passing of this law that made it necessary?

A

In the 1970s, Congress found that about one- third of all Indian children in the United States had been removed from their homes by state and also religious, nonprofit organizations. Eighty- five to 90% of those children had been placed with non- Indian homes. The idea behind that was that state and religious organizations believed that Indian families were not adequate households, and they were different, so they removed them. Congress also found that there was no due process made available to the Indian family; you could be removed from your home without any kind of court hearing, whatsoever. The state, or religious groups, would use coercion, threats of prosecution, etc., to coerce Indian people to consenting to these adoptions.

Q

And what does the law mean? How is it supposed to function, in practice, and what has the reality of how the law has been enforced over the years, looked like?

A

How it’s supposed to work is that when the state removes a child for abuse, neglect, or even if somebody files a voluntary adoption petition in state court, the tribe and biological relatives, the biological parents of the Indian child, are supposed to be given immediate notice that this is happening. At every single one of these hearings, the state courts are supposed to ask the question, “Does anybody have any reason

to believe that this is an Indian child?” If the answer is “yes,” then notice must be given to the tribe and to the biological parents or custodians.

At that point, if it’s a foster care situation or the child is removed for abuse or neglect, then the state has to provide procedural protections to the family. They have the right to testify in the hearing and present evidence, confront witnesses, they have the right to an attorney, things that did not exist for Indian people before 1978. If it’s a foster care situation, this is a long process and could go on for years. Typically, though, it ends after about 12 to 15 months, when the state can basically move to terminate the parental rights of the parents whose children are in foster care. During that period of time, however, the state is supposed to provide “active efforts” to prevent the breakup of an Indian family.

So, they have to actually help the Indian parents to try to rehabilitate themselves, help them get jobs, help them go through addiction programs, help them with whatever it is they need in order to get their children back.

At the hearing before termination of the parental rights, the Indian parents have a right to an attorney, and if they can’t afford one on their own, their tribe participates in that. There must be a qualified, expert witness — somebody who is conversant in Indian childrearing practices — so that the court will know that it’s acceptable and that the reason the state is moving to terminate isn’t because of some sort of “weird” childrearing practice that’s Indian, or what the state thinks is weird and unacceptable. All of that has to happen before the termination of parental rights, before permanent placement happens, either through adoption or a permanent foster care situation. A lot of times, the case can be transferred to tribal court if a child is domiciled on the reservation, or if the tribe or the Indian parents petition the state courts and move the case to tribal court.

QIn this case — Brackeen v. Haaland — the Brackeens argue that while the ICWA ultimately didn’t prevent them from adopting the child, it did make the adoption process more difficult, and they argue the law is unconstitutional. What are some of the arguments being made for the unconstitutionality of the law? And what is your take on those arguments?

AKeep in mind, the factual background of this case is really important. This is a foster care situation and these are parents who want to pretend that they’re adoptive families; they are not. They are foster families who have moved to adopt. They’ve also moved to adopt in opposition to the biological relatives of the Indian children, in all of these cases.

These are White families who are not biological relatives of these children, who are fighting Indian families who are biological relatives of the children. Their arguments are that it discriminates against White people on the basis of race, and that is flatly wrong.

As of 1978, the rule is very clear that if Congress is legislating with an eye toward its obligations to Indians and Indian tribes, the law is constitutional, full stop. That’s all there is to it; it’s not race discrimination. Tribes have treaty rights, they are political entities within the United States, mentioned and noted and protected in the Constitution. To say an Indian affairs statute is unconstitutional is flatly wrong. Also, don’t forget, these are White families trying to prevent Native families who are biological relatives of these children from having their kids back.

QWhat kinds of potential implications does this case hold for the sovereignty of Native American tribes?

ADevastating. It is an existential threat. Let’s say, for example, the Supreme Court strikes down some part of ICWA, even just a little bit of it, on the basis that it discriminates against non- Indians. The legal theory behind that could be applied to all Indian country criminal jurisdiction. Since 1790, Congress says that the federal government has criminal jurisdiction over “Indians” because that’s the way the Constitution was written. It didn’t have a definition of what an Indian was, so that’s the way the statute reads, even to this day. All of Indian country criminal jurisdiction — state, federal and tribal — is rooted in this basis.

If the Supreme Court strikes down parts of ICWA because it just says this applies to Indians and not non- Indians, and then somehow says that’s race discrimination, that means all of Indian country criminal jurisdiction is at risk.

If I were a defense attorney representing an Indian person, or a non- Indian person, in federal court ( or state court or tribal court), I immediately would file a motion to strike all of Indian country criminal jurisdiction down as unconstitutional because if ICWA is unconstitutional, so is all of that. That’s a big one. Another big one is any time that Congress passes a law to try to remedy the history of dispossession and human rights abuses that Indian people have faced throughout history, then all of that will all go down, too. Pretty much everything.

QWhat does that look like for Native American tribes, as a result?

AWell, Indian tribes are going to continue to exist, and they’re going to continue to do good work. A lot of states, 23 states, signed on to the tribes’ position and those states will probably still continue to work with tribes. It’ll be like the abortion situation where, if you’re in a state like Texas or Ohio or Indiana, they will continue and probably aggressively discriminate against Indian families under ICWA, and they will continue to aggressively attack tribal sovereignty within their jurisdiction.

QYou and your wife ( associate professor of law and director of the Indigenous Law & Policy Center at Michigan State University, College of Law, Wenona Singel) have written about the way the law is argued in court and how the judicial system has been able to exploit stereotypes about Native Americans in order to reject the rights of Native American families and tribes. Can you talk about what you mean by this? What are examples of stereotypes being exploited about Native Americans? What are some of the problematic practices and structural issues you see in the adoption process as it relates to the ICWA?

AIt’s not really unique to Indians, in a lot of ways, but the child welfare system and states really pit rich people against poor people. What I mean by “rich people” is people who have jobs; you don’t have to be rich, but Americans who are doing OK feel like they can do foster care and adopt children, versus the parents and custodians who are being brought before the child welfare system because they’re poor, fundamentally.

There’s an enormous amount of race discrimination in the child welfare system. If you’re a poor, White family, there’s an X- percent chance that you’re going to have your kids removed ; if you’re Black, or Native, or Latino, it’s like five to 10 times that. When you get into Indian child welfare, the discrimination sort of doubles because you have state agencies, state workers, state police and state courts who are already in harsh opposition to these poor families, and would rather take the kids and move them into a wealthier situation. The Indian Child Welfare Act slows that down, so they double down on their discrimination against Indian families, they double down on their discrimination and their rhetoric against Indian tribes and Indian families, and against the statute itself.

For a lot of Native families, the way the child welfare system is structured is to give preeminence to the nuclear family scenario, where you have a father who works, the mother who stays home, and happy, content children, like the “Leave it to Beaver” generation.

This is the same standard that is applied in child welfare situations around the country, so it’s incredibly difficult for any poor person or person of color trying to get their kid back in the state child welfare system. Now, contrast that to the tribal child welfare system where the tribes have jurisdiction. There’s no effort to penalize parents for getting into trouble, for becoming poor, or becoming addicted to something, or having some sort of difficult mental health or mental illness situation. They’re not penalized for that by having their children removed from them and adopted out to someone else. It’s a totally different universe and a much better one, frankly, for the whole community.

QDo you know of any advocacy practices in place to respond to the court potentially overturning the law, in ways that uphold its protections for Indigenous children, families, and tribes?

AWell, states can adopt their own version of the Indian Child Welfare Act. Ten states already have, so that’s one way, but that’s state by state. Some states aren’t going to do that, and some are going to do it better than others.

Congress could also fix and restore some of ICWA if the Supreme Court strikes some or all of it down. What any of that looks like at this point, nobody knows. Once the case gets to the Supreme Court, all serious legislative efforts are sort of stopped until the Supreme Court issues a decision.

I really do think that the best advocacy on the ground is for lawyers who have pro bono obligations to take on some of these cases and represent Indian families, and there are thousands of cases all over the country.