SCOTUS Native Adoption Case

“We do not win lawsuits. State governments lose. The only time we allegedly win a lawsuit, it is in reality the federal government winning out over the sovereign rights of a state. Once again, the American Indians are the pawn.”

Chapter One: These are not your children.

We’re interrupting our socialism series this week to talk about an issue you won’t find a lot of coverage on, but it’s part of our mission.

It’s officially June, which means we’re going to be flooded with a series of critical Supreme Court decisions. But there’s one decision that will impact 574 distinct and sovereign nations.

In the brief and brutal history of the United States, tens of thousands of Native children were stolen from their parents and tribal communities and forced into labor camps and residential schools. Stripped of their humanity, identity and often their lives. Those who survived and returned found themselves devoid of any culture or heritage, any connection to their ancestry and families. Some started over. Others left tribal territories and assimilated into white culture. None escaped the generational trauma.

In 1978, Congress attempted to rectify this practice with the passage of the Indian Child Welfare Act (ICWA). Among the provisions are strict guidelines for adopting native children. There are accounts of residential schools operating into the 1990s by Christian groups, but the formal practice ostensibly ended in 1978 with ICWA.

Today, the act is being challenged by combined court cases jointly referred to as “Haaland v. Brackeen.” The case was argued in front of the court in November of last year and involves Native children and their white adoptive family in Texas. This is a tricky case, and we’ll get into the particulars, but there’s one thing to bear in mind at the beginning; and that’s the children.

Cases wind up in front of the Supreme Court because they’re inherently complicated. And while some feel more narrow in scope than others, the overarching reason the highest court decides to hear a case is because there are wide ranging ramifications. Three of the most important aspects of a case are: one, determining whether those involved have standing—meaning they can demonstrate an authentic connection to the case; two, whether prior decisions, or precedents, are uniquely challenged by the circumstances of the case; and three, the constitutionality of the respective arguments. Lower courts in the Brackeen case have been divided on the constitutionality of the complaint, as well as standing, so the Supreme Court has a number of issues to take into account. And that’s a normal path for any case to find itself all the way at the top.

In terms of Brackeen, let’s start with the family side of things. The real life situation involving children. The Brackeens are a successful family with two biological children of their own living in Texas. In what they saw as god’s will, they decided to become foster parents. That’s when Zach (not his first name) entered their lives. While fostering Zach, the Bureau of Indian Affairs (BIA) discovered that relatives in Navajo Territory were willing to serve as adoptive parents. And that’s where the trouble began.

Zach’s biological parents struggled with addiction, as is unfortunately common in Native country. It’s why Zach wound up in the system to begin with. After being fostered by the Brackeens, matters were further complicated when Zach’s mother had another child, this time a baby girl. The Brackeens moved to foster Zach’s half sister in the interest of keeping family together, as their case to fully adopt Zach went through the courts.

The lower courts in Texas found that in attempting to remove Zach from the Brackeen’s home, the BIA was violating equal protection standards under the Constitution and that the agency wasn’t acting in the best interest of the child, thereby challenging both the federal law and the manner in which it’s applied at the state level. Through multiple challenges, the adoption has held thus far, and the Brackeens are fighting to retain that right and apply it to Zach’s sister. Of course, given the length of time this has all gone on—Zach was placed in 2016 when he was only ten months old—it certainly adds an emotional element, as this is the only family Zach and his sister have ostensibly known.

There was a twist, however, in the Texas family court ruling that gave the Brackeens primary custody, with the stipulation that he visit his extended Navajo family for periods during the summers. So Zach’s Navajo family aren’t an unknown quantity. And technically, given the way ICWA was written, he should have been sent there to live with them years ago. Now, all of this is up in the air, as the Brackeens and Zach’s blood relatives wait anxiously for the SCOTUS decision.

As complex as this individual situation seems, it’s even dicier when you scratch below the surface and truly understand what’s at stake, and the real motives of those who are funding the Brackeen’s case.

Chapter Two: Whose best interests are we talking about?

The Brackeens aren’t bad people. They, like many other foster and adoptive parents, became attached to Zach and his sister and sought legal counsel to determine if there was any way to keep them. They had fallen in love. But federal law is extremely clear that, in adoption cases involving a Native child, all efforts must be exhausted to place the child with Native families.

There are essentially three avenues to consider in the Native adoption process as set forth by ICWA.

(And one disclaimer I want to make, since many of you have read our prior essays on Native issues: the term Indian is predominantly used to refer to laws, statutes, services and people, so I’ll be using it when it’s contextually appropriate; but using the term Native to mean Indian when I’m editorializing.)

The avenues are termed “preference” under ICWA, which stipulates, “a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”

The policy is so clear that it continues saying:

“Notwithstanding State law to the contrary, whenever a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior Indian custodian may petition for return of custody and the court shall grant such petition unless there is a showing, in a proceeding subject to the provisions of section 1912 of this title, that such return of custody is not in the best interests of the child.”

So, it’s important to understand both the intent here and the specificity of these preferences. Family and extended family first, members of their tribes second; and if neither is possible, then another Native family may pursue adoption regardless of geography or whether the child is even considered a part of the petitioning tribe. In all ways, the law was designed to keep Native children with Native families. And it even clarifies that at any point, irrespective of state laws to the contrary, a biological parent is allowed to petition for the return of a child, even if that child has been adopted.

But there is one hazy part of the equation that leaves the door open, and that’s the concept of the “best interest of the child.”

So, what we’ve seen in the multiple challenges through the courts regarding the Brackeen case is multifaceted. Zach’s biological parents were drug users. Therefore, he was placed in foster care in his best interest. Having formed a bond with the Brackeens and their other children, and the fact that they were successful, loving and stable, they made the argument that they were clearly in Zach’s best interest. But their claim goes even further than challenging the best interest concept by claiming that placing Native children with Native families, whether related or not, violates the equal protection clause of the Constitution based on racial grounds.

Without knowing much more, I think most Americans would concede that Zach and his sister are better left with their adoptive family. And it likely seems like sending children to live with extended family, and especially to non-family members just because they belong to a federally recognized tribe, is a racially motivated decision rather than a practical one. Of course, there’s more to it. A lot more.

First off, let’s begin by introducing the bad actor representing the unspoken part of this challenge. From The New York Times:

“In 2015, the Goldwater Institute, a conservative think tank in Arizona with donors who have ties to the Koch brothers, put the law on its roster of targets. Goldwater argued in about a dozen cases that the act violated the equal protection rights of Indian children because it was more difficult to permanently remove them from abusive homes.”

Curious, right? What’s a conservative think tank’s interest in the adoption policies of Native children in the United States? Interestingly, this isn’t Goldwater’s first go around. In fact, they’ve been funding challenges to ICWA for more than a decade. This is just the farthest they’ve come. A 2017 article in The Nation provides clues, if not the outright answer, to this puzzling question:

“Goldwater’s stated goal is to have the US Supreme Court strike down ICWA as unconstitutional. The implications go far beyond child welfare: Many tribal members fear that if Goldwater is successful, it could undermine the legal scaffolding of Native American self-determination.”

And there it is.

The child welfare aspect of the challenge is likely subterfuge for the greater goal, to which the Brackeens are just a matter of convenience. And that goal is to attack the very underpinning of tribal sovereignty and Congress’ exclusive and constitutional right to manage all nation-to-nation affairs with sovereign tribal governments. And why would that matter? As The Nation article continues:

“A ruling in Goldwater’s favor, according to Fort and other legal experts, could undermine the authority of tribal courts, shutter tribal casinos, and open up reservations to privatization, something that could benefit oil and gas developers like the Koch brothers.”

Goldwater’s primary funding, when conceived, came from Koch brother foundations and other libertarian-minded families like the DeVos family. Outside of attacking tribal sovereignty, Goldwater typically focuses on the usual slew of libertarian policies like school choice and vouchers to attack the public school system, loosening environmental standards for corporations, promoting electronic cigarette sales to minors and dismantling unions. Apart from these large and coordinated efforts among conservative and libertarian think tanks, which we’ve covered exhaustively in the past, attacking Native sovereignty was more of a side hustle. But with the new conservative supermajority on the Supreme Court, they’ve hit the big time and are close to reaching a dangerous milestone.

The reason The Nation article can make such a leap from child welfare to a more insidious claim of large scale land grabs, is that the Koch family fortune itself has roots in stealing natural resources from tribal lands. There’s also the matter of gaming, which in many states remains a carve out for Native tribes under an interpretation of commerce rules. The biggest encroachment on sovereignty where commerce is concerned is the constitutional protection of trade relations that places commercial transactions, referred to as intercourse between sovereign nations, under the strict purview of Congress. If the Brackeen case exposes an opening in this relationship and calls congressional oversight into question, it opens a Pandora’s box of other state’s rights claims to determine their own relationship with sovereign Native nations.

As attorneys at the Circling Eagle Law Firm conclude:

“Ultimately, if the Supreme Court makes the decision to overturn the ICWA, states would regain the control to remove Native children from their families. This would put the overall existence and longevity of tribes at risk. It is vital to continue to support the ICWA and take action against the possible overturning of this protection for Indigenous communities.”

Chapter Three: Justice and Justices are not the same.

Let’s unpack the legal arguments of the case, beginning with the biggest issue that always faces the SCOTUS, and that’s the issue of constitutionality. On this point, it brings us back to the concept of sovereignty. It’s the central idea that must be understood when contemplating legal and political matters on and off tribal land.

The idea is fairly simple. The mitigating factors and circumstances are anything but.

In the simplest of terms, each of the 574 federally recognized tribal territories are viewed as sovereign and independent nations. Any “intercourse” between nations is detailed in treaties and federally recognized agreements and statutes. Straightforward enough. Where things get complicated is that the United States government maintains several obligations to these tribal entities that are different from so-called “normal” nation-to-nation relationships with other countries. U.S. relations to tribal governments are referred to as sui generis, a Latin phrase that technically means “in a class by itself.”

But, at the root of the concept, any negotiations between the United States and tribal nations are under the authority of Congress because it relates to congressional use of foreign powers. When it comes to commercial interests, these powers are referred to as “plenary powers.” Under the Commerce Clause of the Constitution, plenary powers determine interstate and intergovernmental rules of commerce, and no state is allowed to enter into separate agreements without the express consent of Congress.

In an amicus brief filed on behalf of the tribes in the Brackeen case, the ACLU argues:

“The Indian Child Welfare Act is constitutional and urges the Supreme Court to uphold the centuries-long legal precedent upholding tribal sovereignty — including tribes’ right and ability to preserve their unique cultural identities, raise their own children and govern themselves.”

Here is Justice Jackson pressing the attorney for the plaintiff on the concept of plenary power and constitutional provision that grants jurisdiction exclusively to Congress:

“You say we need to look at it in a more narrow lens, I guess consistent with the sort of general understanding that Congress has limited authority. What I’m a little bit confused about and concerned about is whether it’s really correct that we have to look at it so narrowly, that is, the scope of Congress’s authority as it concerns Indian affairs, when we have said over and over again that Congress has plenary and exclusive authority, and when the history of our Constitution indicates that the constitutional design was about ensuring, in a way, that the federal government had the authority over the tribal relations, tribal affairs, and not the states. It seemed to me that baked into the Constitution's structure related to this, outside of just the Indian Commerce Clause provision, is the notion that the federal government, you know, vis--vis the states was going to be taking charge of this, especially in light of the Articles of Confederation precedent. So, if that’s the case, then what -- what would you say about the thought that rather than, you know, searching for, you know, what additional limits there are on Congress’s authority, we start with the premise that, with respect to Indian affairs, Congress has plenary authority and, therefore, as we’ve said in all of these prior cases, as long as it involves Indian affairs and Congress is making policy judgments, they have a constitutional basis for doing so?”

The attorney essentially responds by affirming the nation-to-nation relationship but contends that it relates more to land and commerce, and that Native children are neither, and therefore the tribes themselves have no “proprietary interest” in matters of adoption.

But where human interactions are concerned, outside of land, commerce and treaties, the attorneys representing tribal interests had other precedents to stand on, such as the 1974 ruling in Morton v. Mancari that examined whether preference to Natives in hiring at the BIA was discriminatory based upon race. In this instance, the court ruled that as a federal agency that oversees the relationship between sovereign entities, it is also sui generis. From the ruling:

“The preference, as applied, is granted to Indians not as a discrete racial group, but rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion.”

Mancari and other cases essentially affirm the notion that each tribal territory is indeed sovereign and that their special nature, as opposed to let’s say France or Japan, carries special consideration.

Justice Gorsuch, considered the most knowledgeable on tribal affairs and a staunch advocate for sovereign rights, invoked Mancari directly and firmly in his questioning, intimating that the plenary powers of Congress were absolute in all matters relating to Native people on and off tribal land. Justices Sotomayor and Kagan followed similar lines of questioning and even Justice Barrett seemed reluctant to concede any ground on the plaintiff’s state’s rights arguments. But the attorneys, clearly prepared for this, made greater headway with Kavanaugh, Thomas, Alito and Roberts with the best interests of the child argument and contending that the particular carve out for adoption on whey they called “racial grounds” was a bigger constitutional issue with respect to the Equal Protection Clause.

Where the conservative justices, with the exception of Gorsuch, all got hung up was in the third preference for adoption. Not parents or extended family. But tribal rights, writ large. As it stands, ICWA basically states that a Native child is better served living with other Native people, even if they’re of no blood relation, than any non-Native family. More than likely, that’s where the decision will hinge, as you can hear in Chief Justice Roberts’ questioning:

“But I have, I mentioned to Mr. McGill, difficulty understanding how the placement priorities work. So maybe I’ll try an example. Let’s say there’s a six-month-old baby that had been born to an Indian couple and the Indian couple for whatever reason is no longer -- no longer there. And there are also no extended family members in -- in the tribe. A non-Indian couple comes forward and says we would like to adopt the six-month-old baby, and they check all the boxes under, you know, best interests of the child. In other words, in normal circumstances, this would be a perfect placement for the child. But non-family members of the tribe say that, no, they think it would be better for the child to be raised with the tribe on the reservation. Does -- does that priority trump the other best interest finding?”

But several briefs filed in support of the tribes refute the best interests claim noting that Native children who remain in tribal areas have led to more positive psychological outcomes. Indian Country Today, a Native publication, writes:

“‘At its core, the law is simple,’ Chairman of the Oneida Nation Tehassi Hill said in a press conference last month. He noted that the American Academy of Pediatrics and the American Medical Association are among the many groups that filed amicus briefs with the Supreme Court recommending the upholding of ICWA, ‘and warning of the harm that the loss of ICWA would bring.’ He called the law ‘wildly successful.’ ‘Tribes, child welfare experts, and medical experts — those who know the law and the needs of children best — overwhelmingly oppose the efforts to overturn ICWA.’”

This best interests argument supports the critical distinction made by tribal attorneys and repeated by the liberal justices on the courts that in all ways dealing with Native people, they must be viewed as political decisions and not racial. That’s incredibly important. Think of it this way. A child from Germany, Ethiopia or Japan—pick a country, any country—has willing adoptive parents from both the United States and their home country. Both are able to care for them. Both capable of providing a home, education, love, support, whatever. Would that child thrive more in their native country or somewhere else? Most people (that aren’t evangelical Christians) would likely understand the obvious answer is their native country. That’s what the third preference refers to. But this line of reasoning appeared to be a bridge too far, well into oral arguments, with justices like Brett Kavanaugh, who continued to struggle with the classifications of political and racial.

“And then you’ve -- you suggested that everything’s been operating smoothly, you know, we leave well enough alone, but I just want you to speak to the concern on the other side, which is, you know, you come in as an adoptive couple, you want to adopt a child, the state court otherwise would say the best interests of the child would be to go with you, and then you’re told no, you’re the wrong race.”

Bring it home, Max.

The Indian Country Today article considers several possible outcomes of this important trial. ICWA could be held up in its entirety, maintaining the sovereign rights of tribes in their current form. It can break it apart and create new standards for when children are placed into foster care. Most terrifyingly, it could strike ICWA down in its entirety, which would place state authorities at the center of the adoption process as it was prior to 1978 when the vast majority of Native children were placed in foster care off tribal land, even when parents and extended families are an option.

This last option would open the door to several other challenges such as criminal law enforcement, search and seizure, and even some commercial challenges because presumably the equal protection clause would also come under scrutiny along with the notion of congressional plenary power. No matter which avenue, observers appear prepared for a long and confusing decision with differing opinions that create more questions than answers.

My hunch is that the likelihood that ICWA survives in its entirety is unlikely. And I would be appalled and slightly surprised if a slim majority struck it down in its entirety. My guess is that it will land somewhere in the middle. A disastrous decision that contains specific language related to adoption proceedings that reverts to a situation much like we had prior to ICWA; but with provisions that attempt to safeguard precedents that uphold the notion of sovereignty where commerce and law enforcement are concerned.

From the line of questioning, my guess is that Gorsuch will align with the liberal justices in upholding ICWA. It seems as though Alito, Thomas and Kavanaugh are prepared to light a match to sovereignty all together. Ironically I think Barrett is a wild card. She appears to get the idea of plenary powers but struggles with the specific nature of adoption, which would certainly track given her experience as an adoptive parent and an evangelical. She’s the biggest reason in my mind that this might wind up somewhere in the middle.

But if we assume the two extremes—ICWA struck down or entirely preserved—I think it’s fair to say that Gorsuch, Jackson, Sotomayor and Kagan will side with preserving it and Kavanaugh, Alito, Thomas and Barrett lighting a match. And that leaves Roberts, which is why I highlighted the snippet of him pressing the attorneys for the tribes on the idea of best interests when it comes to situations that do not involve family or extended family. That makes me very nervous.

Here’s what I find so disheartening and sickening, no matter the outcome. While the Brackeens seem like loving people, they’re evangelical Christians. Part of the legacy of fundamentalist ideology that views Christian primacy in matters of family. The same legacy that governed the administration of residential schools that stole tens of thousands of Native children under the absolution of Christ and murdered thousands in the process. The unholy alliance of this zealotry with forces like the Goldwater think tank make this all the more disgusting. If ICWA is struck down, or even dismantled, it will be yet another evil libertarian-Christian fundamentalist victory through the courts; another in a long line of victories in their relentless campaign to turn back the hands of progress and suppress the rights of Native people or any non-white Christian rich people for that matter.

Here endeth the lesson.