Fort Worth adoption case that could erode tribal sovereignty goes before Supreme Court

In 2017, a Fort Worth couple filed a lawsuit regarding their adoption of a Native American child. On Wednesday, arguments in that case were heard by the Supreme Court, and the court’s eventual decision could have serious repercussions for Native American sovereignty.

The case has gained national attention and is the subject of the podcast “This Land” by Crooked Media and journalist Rebecca Nagle.

Here’s what you need to know about the Fort Worth adoption case and the Indian Child Welfare Act at the center.

What is ICWA?

The Indian Child Welfare Act, or ICWA, is a federal law designed to protect Native American families in the adoption of Native children.

ICWA gives priority in adoptions of Native American children to Native families. The law was created in 1978 to protect Native American families and children from disproportionate separation rates. Native American tribes are sovereign nations, and ICWA serves to coordinate child welfare cases between those sovereign nations and state welfare agencies.

Since the 1800s, Native American children have been forcibly separated from their families and tribes, first through boarding schools and then through removals by state welfare programs. According to the National Indian Child Welfare Association, or NICWA, 25-35% of all Native children were being removed from their families prior to ICWA; of these, 85% were placed outside of their families and communities even when fit and willing relatives were available.

In response, the federal government passed a series of regulations for state welfare agencies to follow when working with Native American tribes. The ICWA regulations, such as requiring state agencies to involve the child’s tribe and the child’s parents in case proceedings, aim to keep Native American children within their communities when possible.

How did the case start?

Chad and Jennifer Brackeen, an evangelical white family in Fort Worth, applied to adopt a child they had fostered for 16 months who is a member of the Navajo and Cherokee nations, according to the federal lawsuit.

The Brackeens first filed for custody of the child — referred to as ALM in court documents — in July 2017. The court, abiding by ICWA’s policies, ruled against them since there was a Native family in New Mexico who was able to adopt him. The Brackeens appealed and were backed in the subsequent lawsuit by Texas.

In January 2018, the Brackeens finalized the adoption of the toddler. However, they continued to pursue the civil case against ICWA. Two other families and their home states of Minnesota and Indiana also joined the suit.

In October 2018, Judge Reed O’Connor ruled in favor of the Brackeens.

When ALM’s mother gave birth to another baby in 2019, the Brackeens sought to adopt her, too. But the baby’s great-aunt, who is a Native American tribe member, also wants to adopt her.

The Brackeens took the case to family court. In March 2019, Tarrant County Judge Alex Kim ruled in favor of the Brackeens and against ICWA, according to the Austin American-Statesman, going against federal law. Kim ruled the state’s requirements in ICWA were unconstitutional. The custody case of ALM’s sister is still ongoing.

What is Texas’ involvement?

While the case that went before the Supreme Court on Wednesday is based on the 2017 lawsuit, advocates say Texas, and other states, are part of a coordinated attack on ICWA.

“The state of Texas is asking the Supreme Court — the highest court in our land — to rule that the ICWA is unconstitutional,” said David Simmons, the director of government affairs and advocacy for the National Indian Child Welfare Association, or NICWA.

He said the way the case has made its way through the courts “is highly unusual.”

For example, not many custody cases garner the explicit support of state leaders, but Texas Attorney General Ken Paxton became involved in the Brackeens’ adoption case early on. In 2019, he posted a Youtube video where he talked with the couple about why they wanted to adopt the child and their experience fostering.

“We understand that culture is important and the historic tragedy of Native families being separated,” Chad Brackeen said in the video. “But at some point, the repeated breaking of attachments has to outweigh those benefits.”

In October 2018, the Office of the Attorney General commended O’Connor’s ruling in favor of the Brackeens.

“Today’s ruling protects the best interest of Texas children,” Paxton said in a press release.

Paxton’s statement says since ICWA mandates different rules for custody and adoption cases involving Native children, the federal law violates Texas’ own adoption process and “could compel a placement that is directly against the best interest of the child.”

The Goldwater Institute, a conservative think tank backing the families in the Texas v. Haaland case, claims ICWA potentially harms Native children who are in unsafe conditions. The Goldwater Institute has been involved in at least 13 adoption ICWA cases, according to its website, and declared in a blog post it has “done more work on this issue than any other group nationwide.”

However, throughout the case’s history, 31 child welfare organizations, 26 states and the District of Columbia and 77 members of Congress have offered support for ICWA in court filings. In a brief filed in support of ICWA, 11 child welfare groups said ICWA’s standards have “exemplified evidence-based best practices in child welfare.”

Advocacy groups and Native tribes say ICWA is still needed as Native children continue to be placed in non-Native households even when suitable Native families are able to adopt the child.

What are the potential repercussions?

The Supreme Court’s eventual ruling is not as simple as siding with the plaintiffs or defendants. The court’s ruling could be narrow or broad, and, according to experts, could endanger tribal sovereignty.

Native tribes are sovereign nations. ICWA, like other federal laws, is based on the understanding that Native Americans are part of a sovereign nation. If ICWA is struck down or even weakened, other laws that protect tribal sovereignty could be at risk, said trial and appellate lawyer Chad Baruch.

The Supreme Court at some points has ruled on narrow grounds in cases, “but this last term we saw that go out the window,” said Baruch, who previously served as chair of the Board of the State Bar of Texas.

If the court rules against ICWA and erodes Native sovereignty, “the erosion of that from the court would be almost incalculable,” Simmons said.

“It would take us back to those days when the U.S. government policy towards Native people was not just about assimilation, but even destruction,” he said.

Simmons is hopeful the justice will look at legal precedents, which have upheld ICWA and other tribal sovereignty laws for years.

“We’re hopeful that justices will look at almost 200 years of precedent that counters every the arguments the defendants have made,” he said. “We think that the justices will see this and we hope that they will understand not just the critical importance to keeping Native families and children safe and protected but also the importance of how this lawsuit plays out in its interaction with other federal Indian law as well.”

What are the legal arguments?

The primary arguments in the Brackeen case from the families are that ICWA relies on race-based discrimination because it gives priority to Native American families in adoption cases involving a Native child. The Brackeens and the other two families say ICWA placed burdens on them during the adoption process and discriminated against them based on race. They argue because of this, ICWA violates the Equal Protection Clause.

However, Native American is a political status, not a race, according to legal precedent.

“People confuse tribal affiliation with racial classification,” Baruch said. “If it’s not a racial classification, then it has no equal protection.”

Simmons explained that Native American is a political status in the same way that “American citizen” is a political status — the designation exists outside of race.

“The idea that ICWA is based on racial classification is just wrong,” Simmons said.

The Fifth Circuit Court of Appeals held up the legal precedent of the Equal Protection Clause and ICWA in 2019 when it reversed O’Connor’s 2018 district court decision and found that ICWA does not violate the Equal Protection Clause, the anti-commandeering doctrine or the non-delegation doctrine of Article 1 of the U.S. Constitution.

The defendants in the case are the United States, Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, Quinault Indian Nation and the Navajo Nation, the United States Department of Health and Human Services, the Bureau of Indian Affairs and the United States Department of the Interior.

Justices appear likely to leave most of law in place

After hearing more than three hours of arguments Wednesday, the Supreme Court appeared likely to leave in place most of the law that gives preference to Native American families in foster care and adoption proceedings of Native children, the Associated Press reported.

Justice Brett Kavanaugh called the case difficult because the court is being called on to draw a line between tribal sovereignty and “the fundamental principle that we don’t treat people differently because of race, ethnicity or ancestry.”

He was among conservative justices who expressed concern about at least one aspect of the law that gives preference to Native parents, even if they are of a different tribe than the child they are seeking to adopt or foster. Chief Justice John Roberts, Justice Samuel Alito and Justice Amy Coney Barrett also raised questions about whether that provision looked more like a racial classification that the court might frown upon.

“To get to the heart of my concern about this, Congress couldn’t give a preference for white families to adopt white children, Black families to adopt Black children, Latino families to adopt Latino children, Asian families to adopt Asian children,” Kavanaugh said.

But none of the non-Native families involved in the case has been affected by the preference the conservative justices objected to, Justice Department lawyer Edwin Kneedler told the court.

Even if there is a court majority to strike down that provision, the rest of the law could be kept in place, Ian Gershengorn, a lawyer for the Cherokee Nation, the Navajo Nation and other tribes said.

He urged the court to uphold the law “that has made such a meaningful difference to so many children.”

Justice Neil Gorsuch, a conservative who is a strong supporter of Native Americans’ rights, and the court’s three liberal justices seemed strongly inclined to uphold the law in its entirety.

“Congress understood these children’s placement decisions as integral to the continued thriving of Indian communities,” said liberal Justice Elena Kagan.

Gorsuch said a broad ruling in favor of the challengers also would take “a huge bite out of” other federal programs that benefit Native Americans, including health care.

The Associated Press contributed to this report.