海角大神

US has fraught history with Native adoption. Enter the Supreme Court.

On a cool October morning, the sun shines down on a clearing in the piney woods of southeast Texas. Here, Tania Blackburn, after spending her childhood bouncing from foster home to foster home, is starting to build a life for herself.

The sun shone on Aurene Martin too when, driving to Capitol Hill, she found out she had a chance to adopt another son.

And sunlight pierced the hospital window the day Robyn Bradshaw became a grandmother.聽

In the world of child welfare, sunny days can be hard to find 鈥� something these three Native American women know all too well.

Finding homes for children whose parents are unable or unwilling to raise them is a heart-wrenching process, even when it goes smoothly. An overworked and under-resourced system only adds to the emotional strain, as courts, caseworkers, and families grapple with the question at the core of every child welfare case: What is the best interest of the child?

In cases concerning Native American children, that question is especially complicated.

For over 40 years, many of those cases have been subject to the Indian Child Welfare Act (ICWA). Born from a tragic history, the law established minimum standards for removing an 鈥淚ndian child鈥� from their families and placing them in other homes.

For decades the convention in America鈥檚 child welfare system had been that vulnerable children were best served by removing them from 鈥渦nfit鈥� families and placing them in 鈥渃losed鈥� adoptions, with no contact between the child and birth parents. ICWA required states do almost the exact opposite: prioritize keeping children with their parents when possible, and if not, placing them with relatives or members of their tribe.

The law has faced many legal challenges, but none quite like the one the U.S. Supreme Court will hear on Wednesday. The argument will likely continue the justices鈥� term-long discussion of the role of race in American society and law. The decision 鈥� expected next summer 鈥� is difficult to predict, but its consequences could extend far beyond ICWA. The case pits loving families against each other. It casts a federal and state power struggle against a backdrop of centuries of injustice. And it puts to the highest court in the land one of the toughest questions a judge can hear: With a vulnerable child in need of a family, what is in their best interests?

鈥淓veryone wants children to be taken care of, and to be in safe places,鈥� says Kevin Washburn, former assistant secretary of Indian Affairs at the Department of Interior and a citizen of the Chickasaw Nation.

鈥淭here was a time when Native children were often adopted by very good, well-intentioned non-Indian families, and yet for the children in those families they often felt lost,鈥� he adds.

What ICWA has provided, he continues, is a recognition 鈥渢hat courts should strive, when possible, to place children [somewhere] that鈥檚 culturally appropriate, so that they don鈥檛 have that sense of loss and lack of belonging.鈥�

鈥淗e had already lost a family鈥�

Eight years ago, Jennifer and Chad Brackeen heard God calling on them to become adoptive parents.

But when they thought they were about to answer that call 鈥� adopting a boy, identified in court documents as A.L.M., who they had been fostering for a year 鈥� the Navajo Nation intervened.聽

The boy鈥檚 birth parents had terminated their parental rights. A.L.M. is eligible, through his mother, to be enrolled in the tribe, so his case fell under ICWA. The tribe found a Navajo family in Colorado willing to adopt him, and a judge denied the Brackeens鈥� petition. Soon after, they got a text message saying A.L.M. would be taken in two days.

It鈥檚 unclear why it took so long for a tribe to intervene, but the Brackeens appealed. After the Navajo family withdrew, they won.聽They are seeking to adopt A.L.M.鈥檚 half sister, with the support of the young girl鈥檚 mother, but the Navajo Nation wants the girl placed with her great-aunt or an unrelated Navajo couple. The couple didn鈥檛 respond to interview requests, but Ms. Brackeen described the adoption process on her personal blog.聽

鈥淗e already had strong attachment to us and to our family,鈥� she wrote in a January 2018 . 鈥淗e had already lost a family in his short life, and we didn鈥檛 believe it was in his best interest to lose another.鈥�

They officially adopted A.L.M. in 2018, 鈥渂ut the passion we have to amend this law remains,鈥� she continued. 鈥淚t is destroying the hearts of children across the country every day.鈥�

They have a particular grievance with ICWA鈥檚 鈥減lacement preferences.鈥� Those provisions require that an 鈥淚ndian child鈥� 鈥� a child enrolled, or eligible to be enrolled, in a federally recognized tribe 鈥� be placed with a member of their extended family, other members of their tribe, or other Native families.

The justices are not being asked to resolve any particular custody dispute in Brackeen v. Haaland, but instead evaluate those provisions as well as other facets of ICWA. The Brackeens and other plaintiffs are arguing that ICWA, particularly through its placement preferences, unconstitutionally discriminates against non-Native families.

There are many other questions, several of which stem from what is perhaps ICWA鈥檚 biggest strength and, here, its greatest weakness: the fact it applies not on tribal land, but in state courts. Does Congress have the power to enact a law like that? Does it violate the 10th Amendment by allowing the federal government to intrude in state-only matters, in this case the welfare of children in states?

With Native Americans increasingly choosing to live off reservations 鈥� about 87% do, according to the 2020 census 鈥� this issue was somewhat inevitable. The federal government has unilateral authority to work with federally recognized tribes, and states have broad authority over child protection and welfare.

With ICWA, Congress did 鈥渋mpose federal law on state court processes鈥� says Mr. Washburn, who is now dean of the University of Iowa College of Law. But it did so 鈥渇or a legitimate purpose, for good reason.鈥澛�

鈥淟iterally stealing Indian children鈥�

Congress passed ICWA in 1978 after years of research, investigations, and public hearings. That process itself was the result of more than a century of Native children being taken from their families.

Starting in the 19th century, hundreds of thousands of Native children were taken from their families and placed in boarding schools, with the partial goal of assimilating them into white culture, the National Native American Boarding School Healing Coalition. As boarding schools wound down in the 1960s, state child welfare services and federally funded private adoption programs began removing Native children in large numbers from their homes.

By the early 1970s, about 1 in every 4 Native children were in foster or adoptive care or boarding schools, according to congressional testimony 鈥� often because social workers viewed impoverished Native homes as neglectful homes.聽

The federal government 鈥渉as chosen to allow these agencies to strike at the heart of Indian communities by literally stealing Indian children,鈥� said James Abourezk, a senator from South Dakota, at a in 1974.

The result was a trailblazing piece of child welfare policy that prioritized keeping children with parents if possible and if not, with relatives or other tribal members.

鈥淚t makes people have to go through a fair process,鈥� says David Simmons, government affairs director at the National Indian Child Welfare Association.

That does mean that ICWA cases can take longer to resolve, leaving children in temporary placements 鈥� and forming attachments 鈥� longer than anyone would like. But Mr. Simmons thinks it鈥檚 worth it.

鈥淭he child welfare system is broken in this country, and has been for a long time,鈥� he adds. ICWA 鈥減ushes those systems to work more effectively, and also consider not just the immediate needs of children but their long-term needs too.鈥�

鈥淲hat really ought to matter ... are children鈥�

Tania Blackburn knows all about the broken child welfare system.

As a child in Oklahoma, she lived in nine or 10 putatively Native foster homes over the course of 11 years. ICWA failed her, she says.

Before she entered foster care, her birth mother grounded her in Delaware and Creek culture. They would go to powwows and ceremonial dances, make regalia, and visit family members.

鈥淥nce I was put into the foster care system it was completely different, or it was nonexistent,鈥� she says.

鈥淚 have missed out on all those seasons and dancing, and growing up with my cousins and kinfolk,鈥� she adds. 鈥淚 could return, and they wouldn鈥檛 know who I was.鈥�

She lives more than 400 miles away now, in a trailer on a dirt road outside a small town in southeast Texas. She鈥檚 building a house in a clearing with her husband, and she鈥檚 never been happier. Her daughters are here, and her brother, who was in foster care with her, will be moving here soon. They鈥檝e bought three baby goats they want to raise for milk.

She still dances and goes to powwows. She beads as well 鈥� a recent work sits next to a Bible on her living room table. But it鈥檚 not the same. 鈥淓ven with ICWA,鈥� she says, she feels she lost something. After years of struggle, including substance misuse, she thinks she鈥檚 here not because of ICWA, but in spite of it.

鈥淲hat really ought to matter, more than legacy or tribes, are children,鈥� she says. 鈥淲e鈥檝e got to find good people and ... not to limit their options [for] love and support.鈥�

鈥淎merica can live on without tribes, but America cannot live on with broken people; it cannot survive without good, stable families,鈥� she adds.

It鈥檚 a common argument among ICWA critics, including many, like Ms. Blackburn, with personal experiences. The law, they argue, allows tribes to systematically harm and traumatize Native children by removing them from 鈥� or depriving them of 鈥� loving non-Native homes.

鈥淢any tribes are just entirely cavalier with the child鈥檚 psychological sense of permanency,鈥� says Mark Fiddler, an adoption and family law attorney in Minneapolis.

He was once so enamored with ICWA that he formed a special practice dedicated to it. But the more cases he worked on, he says, the more his views changed. Now, he thinks ICWA has become the crude tool of family separation it was originally intended to prevent. Today, he represents the Brackeens and other families in the lower courts.

鈥淭he paramount value [for tribes] is cultural preservation,鈥� he says. 鈥淚 get that, but at what cost?鈥�

Mr. Fiddler says he gets 鈥渢hat鈥� because he is Native himself, a member of the Turtle Mountain Band of Chippewa Indians. Though he grew up in Minneapolis, he was raised in his Native culture, visiting the reservation and learning about its history and traditions.

He鈥檚 a pariah there now, , because of his opposition to ICWA.

What he wants is more Native foster homes, and more Native adoptive parents. What he wants is for tribes and governments to tackle systemic problems that feed the child welfare system, like substance misuse and joblessness. Instead, he believes ICWA has set itself up to fail: requiring solutions where there aren鈥檛 the necessary resources.

鈥淭hat鈥檚 what nobody really wants to talk about,鈥� he says.

鈥淎ll these kids crash into the system, they bond and attach, and then we just mess them up again,鈥� he adds. 鈥淚t makes ICWA kind of unmatched in its brutality.鈥�

鈥淚t was so healing鈥�

People like Sandy White Hawk wished ICWA had become law earlier.

In the 1950s, a white missionary couple adopted her at 18 months. They raised her in a small Wisconsin town. She knew she was Native聽鈥� her mother would tell her, in 鈥渁n exceptionally negative way鈥� 鈥� but she didn鈥檛 know what it meant. She just knew she was different from everyone around her.

鈥淚nitially you may think, so what? I鈥檓 being cared for,鈥� she adds. But 鈥渢here鈥檚 an emotional isolation that develops.鈥�

鈥淎ll the things that nobody ever says [to you], things like, 鈥極h, you laugh just like your Aunt Gladys,鈥� 鈥� she continues, 鈥渋t just adds up over time to be a really deep grief and loss, with an emotional isolation.鈥�

At age 35, Ms. White Hawk, a Sicangu Lakota, returned to her birthplace: the Rosebud Reservation. She remembers feeling her 鈥渓ungs open up.鈥�

鈥淚t felt like I was breathing in a way I hadn鈥檛 breathed before,鈥� she says. 鈥淭he land itself seemed to wake my spirit up.鈥�

Reuniting with her family, she finally had the feeling of looking at people and seeing herself.

鈥淛ust seeing them and having that affirmed began to give me right away a sense of belonging,鈥� she says. 鈥淚t was so healing.鈥�

Unlike then, today family and community placements are now the priority in any child welfare proceeding, and closed adoptions are exceedingly rare. And supporters of ICWA say the 鈥渞evolutionary鈥� law deserves credit for helping bring that about.

鈥淚CWA really was a path-marking statute in that [family placement] regard,鈥� says Dan Lewerenz, a contract attorney with the Native American Rights Fund and a member of the Iowa tribe of Kansas-Nebraska. 鈥淭oday almost every state recognizes that that鈥檚 a best practice.鈥�

Data shows that American Indian and Alaska Native children are still disproportionately represented in foster care, but聽experts and advocates say the situation is night and day compared to the 1960s and 鈥�70s. Native children age out of foster care less often than other children and they are placed with relatives more often than other children, according to data by Casey Family Programs.

鈥淗ave we had trouble in the courts? Yes. Has it led to a reduction? Yes,鈥� says Abby Abinanti, chief judge of the Yurok Tribal Court in Northern California.

鈥淲e feel it has been successful in that regard 鈥� maybe not as much as we want, but it鈥檚 a start,鈥� she adds.

As a state court judge 鈥� the first Native woman to reach that position in California 鈥� Judge Abinanti heard many ICWA cases. They鈥檙e all hard, she says, even when they go smoothly.

And they often do go smoothly. Between 2015 and 2021, there were placement preference appeals in just 13 of 254 ICWA cases, according to data compiled by Kate Fort, director of the Indian Law Clinic at Michigan State University.

When the law isn鈥檛 followed, trauma and even more heartbreak can emerge.

P.S., as she鈥檚 known in court records, had a long, complicated birth. Robyn Bradshaw, her grandmother, was in the room for it all. She was in the Hennepin County, Minnesota, hospital as P.S. recovered. And she was there for the first three years of her granddaughter鈥檚 life, helping raise her in her home.

But when P.S.鈥檚 parents were arrested, county officials told Ms. Bradshaw that an old felony conviction disqualified her from becoming her foster parent. They never told her she had a right to clear her record. P.S. was put in emergency custody and, later, into a foster placement with the Clifford family.

Six years of litigation followed, as the Cliffords fought to adopt the girl they fostered for almost two years. Ms. Bradshaw, a member of the White Earth Band of Ojibwe, went to every court hearing.

鈥淚 remember sitting in court and feeling like I was burning up inside,鈥� she said in a statement. 鈥淚 knew P.S. belongs with me. ... I felt like I was dying from a broken heart.鈥�

In 2020, she adopted P.S. The Cliffords are co-plaintiffs in the Brackeen case.

Ms. Bradshaw has filed an opposing them. This all could have been avoided, she writes.聽

Had Hennepin County officials followed ICWA and child welfare practices, 鈥淧.S. would have remained with Ms. Bradshaw, her caregiver since birth,鈥� the brief states, quoting the Minnesota court鈥檚 opinion in her custody case. 鈥淚nstead, [P.S.] has been traumatized by our system due to numerous failed placements. ... And the Cliffords have lost a child whom they love and consider their own.鈥�

Should American law be 鈥渃olorblind鈥�?

The case before the Supreme Court is a complicated one: When the Fifth Circuit Court of Appeals heard the case, its final decision stretched for 325 pages with six separate opinions.

The Supreme Court鈥檚 three liberal justices are likely to support ICWA. Justice Neil Gorsuch, one of the court鈥檚 most conservative members, has the most experience with tribal law and a record of ruling in tribes鈥� favor.

Justices Samuel Alito and Clarence Thomas, meanwhile, appeared very skeptical in the high court鈥檚 last ICWA case, Adoptive Couple v. Baby Girl, in 2013. Two others, Chief Justice John Roberts and Justice Amy Coney Barrett, are adoptive parents themselves.聽

Beyond the views of the justices, the volume of questions means there are all manner of ways the court could potentially rule.

The placement preference provisions are perhaps the most compelling to the average person, but the justices could resolve the case through other questions. The conflict ICWA raises between federal and state governments on child welfare proceedings is one possibility. The scope of the Indian commerce clause 鈥� a provision of the Constitution that gives Congress sole authority to work with federally recognized tribes 鈥� could be another.

The hottest question in the case, however, ties into issues the justices have been vigorously debating already this term 鈥� specifically, race and the idea that American law should be 鈥渃olorblind.鈥�

In one case this term, Alabama is arguing that being required to draw multiple majority-Black voting districts is unconstitutional because it requires the state to perform 鈥渞ace-based sorting.鈥� In another case, students at two universities are arguing that affirmative action programs violate the equal protection rights of certain races.

The Brackeen case makes similar arguments.

ICWA 鈥渄iscriminates against Indian children on the basis of their ancestry ... and it deprives them of the 鈥榖est interests of the child鈥� test that applies to every other kind of child in state court proceedings around the country,鈥� said Matthew McGill, a lawyer at Gibson, Dunn & Crutcher who is representing the Brackeens, on a call with reporters last week.

It also discriminates against prospective parents of those children, 鈥渂y putting non-Indian parents at the back of the line, and putting in front of them by law literally every Indian family from every single one of 573 Indian tribes,鈥� he added.

There is an important difference here compared to, say, affirmative action, however. In making this argument, Mr. McGill and his colleagues are arguing that being 鈥淚ndian鈥� for ICWA purposes is a racial classification. The Supreme Court has never said that in a majority opinion 鈥� though a few justices made the argument in the Adoptive Couple case 鈥� instead maintaining, for centuries, that being 鈥淚ndian鈥� is a political classification rooted in tribes鈥� status as sovereign nations recognized by Congress.

鈥淚f they prevail on that argument, the effect on Indian law would be incalculable,鈥� says Mr. Lewerenz, a University of North Dakota School of Law professor.

Practically every statute that provides programs, services, and benefits to Native people 鈥渉as tribal membership, membership in a federally recognized tribe, as the touchstone,鈥� he adds. 鈥淭hey are basically trying to burn down all of Indian law with this argument.鈥�

While this is the same court that made several historic rulings last term, Mr. Washburn, the former assistant secretary of Indian Affairs, would be surprised if the court transformed tribal law in that way.

It鈥檚 rare that Indian law cases are politically or ideologically polarizing, and the case provides a few paths toward a more restrained decision. The court could give state courts more leeway to not follow ICWA, or it could strike down just the preference for 鈥渙ther Indian families.鈥�

鈥淭here are possible ways for this case to come out where ICWA loses but all of Indian law doesn鈥檛 get lost,鈥� says Mr. Washburn.

Tribes are nonetheless making preparations for a post-ICWA world.

This would resemble something like the diffuse abortion access landscape that has emerged since the court overturned Roe v. Wade last summer. Tribes would lean on partnerships and shared resources with state and local agencies and organizations, as well as build out their own child welfare infrastructure and ensure that ICWA-style state laws are enforced.

Regardless of how the high court rules, tribes have a number of ways of ensuring their children are cared for in state systems, said Ms. Fort, director of the Indian Law Clinic at Michigan State University,聽on a call with reporters in October.

鈥淥ne of the greatest success stories of ICWA is the partnerships that have developed between tribes and states, and I think those partnerships will continue even if ICWA falls,鈥� she added.聽

鈥淭he important part is that they鈥檙e connected鈥�

For almost her entire life, Aurene Martin has seen ICWA work.

Not only has she adopted two sons through ICWA, she worked on ICWA cases in the mid-鈥�90s as an attorney for the Oneida tribe in Wisconsin.

When Ms. Martin was growing up, her grandmother on the Menominee reservation, about an hour鈥檚 drive from Green Bay, would foster Native children. Some were girls around her age and they would all play together.聽

鈥淚t was just like they were kids in our family,鈥� she says. But 鈥渢hey always wanted to go back to their parents. They loved their parents.鈥�

Today, Ms. Martin is focused, not on the case, but on raising her two adopted sons in their home in the Washington, D.C., suburbs.

She鈥檚 listening to her younger son鈥檚 whistles echo through the house. She鈥檚 trying to encourage her older son to pursue art without nagging. It鈥檚 all the challenges and rewards of parenting, she says, with a heavy dose of added complexity.

鈥淵ou struggle with impostor syndrome, maybe,鈥� Ms. Martin says.

For adopted children 鈥渁t some level, you always have that sense of loss at your very core, and there鈥檚 nothing I can do to make up for that,鈥� she adds.

But Ms. Martin is doing everything she can. The boys know they鈥檙e adopted, and, as they鈥檙e entering the moody teenage years (13 and 14), 鈥渢hey鈥檙e shockingly not curious about the details,鈥� she laughs.

They鈥檙e from different tribes, Oneida and Menominee, but Ms. Martin has roots in both communities. They make frequent trips to the reservations, including four times in the past year.

鈥淭he important part is that they鈥檙e connected to their family, that they鈥檙e connected to the community.鈥�

Editor鈥檚 note: This story has been edited to clarify a quote from Ms. Bradshaw鈥檚 amicus brief.