A group of foster families appeared before the Supreme Court on Wednesday, fighting to adopt Indian children over objections from tribes and the federal government, telling the justices that the federal law restricting their adoptions is discriminatory.
At issue is the Indian Child Welfare Act, which tribes contend was drafted to protect tribal children from being taken outside their communities.
The legal battle is led by Jennifer and Chad Brackeen. They welcomed Zachary into their Texas home as a foster placement in 2016 and sought to adopt him a year later after his birth parents’ rights were terminated. Though the birth parents — both of Indian blood — supported the adoption, the Brackeens did not have Navajo ties, which spelled trouble for their court proceedings.
In ordinary circumstances, state courts or governments consider the best interests of the child, but Zachary’s birth mother is Navajo. So, under the Indian Child Welfare Act, decisions by courts about adoptions of American Indian children shift into tribal hands and away from states.
The Brackeens, along with two other families, have challenged the Indian Child Welfare Act as unconstitutional.
Matthew McGill, the lawyer for the Brackeen family, told the court that more than 11,000 American Indian children are in state welfare systems, with fewer than 2,000 Indian foster homes.
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He said when these children are placed in non-Indian homes, they bond with the foster families outside the tribal communities.
“They have liberty interests that the tribe cannot override,” Mr. McGill told the court, arguing the children have constitutional rights upended by the law. “The tribes do not have a proprietary interest in these children.”
Tribes counter that a long history of discrimination that informs the law gives them preference — and protection — of tribal placement of Indian children.
The tribes argue the Indian Child Welfare Act, enacted in 1978, was intended to give them a chance to assert their desire to have Indian children raised by their communities.
Ian Gershengorn, the lawyer representing the tribes before the high court, said Wednesday the legislation, per Congress’ intent, protects the best interest of the child.
“It protects child safety, facilitates access to remedial family services,” he said. The National Indian Child Welfare Association (NICWA) “is the gold standard.”
Census Bureau data from a decade ago show that roughly 18,000 American Indians or Alaska Natives younger than 18 were adopted. The NICWA estimates that 56% of those children were placed in homes outside their tribal communities.
The case raises thorny questions about ethnicity and identity and joins a line of cases before the justices dealing with questions of discrimination.
The 5th U.S. Court of Appeals generally sided with the Brackeen family last year, though the judges were divided over some aspects of the ruling. They deadlocked on the key question of whether the law’s requirement that tribal placements be preferred violated the 14th Amendment’s equal protection clause.
The competing opinions in a single circuit begged for Supreme Court to hear the case.
On Wednesday, no clear majority of the court sided one way or the other.
Justice Neil M. Gorsuch, a Trump appointee, appeared to align with the court’s liberal wing, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, in his line of questioning backing the tribes.
“The policy arguments may be better addressed across the street,” Justice Gorsuch told Mr. McGill, referencing Congress in the U.S. Capitol.
“This is a matter for Congress, right?” Justice Kagan echoed. “Isn’t that really Congress’ judgment that we are supposed to respect?”
The Biden administration is siding with the tribes in the case.
Edwin Kneedler, deputy solicitor general, said the NICWA protects family integrity and kinship unity. He said the federal government has a duty to protect the tribes.
“There is no basis for uprooting those practices or for overturning Congress’ considered judgment when enacting” NICWA, he told the court.
Texas, meanwhile, is leading several Republican-led states in backing the families.
Though the Brackeens were able to eventually adopt Zachary, they still struggled to adopt his sister.
They are joined by Nick and Health Libretti and Danielle and Jason Clifford, two other families who have had legal battles concerning the NICWA and its impact on their adoption proceedings.
The case is Brackeen v. Haaland. An official ruling is expected by the end of June.
• Stephen Dinan contributed to this report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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