The Supreme Court has agreed to review the constitutionality of the Indian Child Welfare Act (ICWA), which was enacted by Congress in 1978 to prevent non-Indian families from adopting Native American children.
On Feb. 28, the court granted the petition for review in the case, Haaland v. Brackeen, court file 21-376, which it consolidated with Cherokee Nation v. Brackeen, Texas v. Haaland, and Brackeen v. Haaland. The lead petitioner is U.S. Interior Secretary Deb Haaland.
Chad and Jennifer Brackeen, a white evangelical Christian couple in Texas, tried to adopt a Native American child, although an appellate court ruled that—under the ICWA—Indian families are entitled to enjoy preference in the adoption process.
The Brackeens’ attorney, Matthew D. McGill of Gibson, Dunn and Crutcher LLP, said he is glad his clients’ case will be reviewed by the Supreme Court.
“This case is about preserving the Brackeens’ family and, especially, the continued well-being of the little girl they are seeking to adopt, who has thrived as part of the Brackeens’ family now for more than two years,” McGill told The Epoch Times in an emailed statement.
“We are pleased that the court has chosen to review all of the important constitutional issues raised by the parties.”
The Brackeens argue that the ICWA denies them their constitutional right to equal protection.
Although adoption is generally governed by state law and based on the best interests of the child, the federal statute created a separate child-custody system for Indian children, directing state courts to give preference to placement of a child with “(1) a member of the child’s extended family, (2) other members of the Indian child’s tribe, or (3) other Indian families” of any tribe, instead of with non-Indian adoptive parents, the Brackeens stated in a brief (pdf).
The U.S. Court of Appeals for the 5th Circuit stated in its decision (pdf) against the Brackeens that a U.S. District Court ruled that key provisions of the ICWA were unconstitutional, but in the process “disregarded two centuries of precedent, and omitted any discussion of the history of the federal constitutional power to enter treaties or legislate with respect to the Indian tribes.”
The ICWA governs the removal and out-of-home placement of Native American children. The statute sets minimum federal standards that have to be adhered to in any legal proceeding to place an Indian child in a foster or adoptive home, and requires that Indian tribes and families be allowed to participate in such Indian child welfare cases, according to the 5th Circuit.
The ICWA was enacted after Congress found “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” Congress also faulted the states and their administrative and judicial bodies for often failing “to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”
The system in place before the ICWA was adopted was “designed to destroy Indigenous people,” said Alleen Brown in a 2019 column on the left-wing website The Intercept.
“In the 1970s, between a quarter and a third of Indigenous children across the United States had been removed from their homes. Social services often cited neglect or deprivation—euphemisms for poverty—as grounds for placing children in the custody of non-Native families and institutions, offering birth parents little opportunity for redress,” Brown wrote.
“The campaign against the Indian Child Welfare Act fits into a wider right-wing effort to legally challenge civil rights-era gains that have remained instrumental in shielding marginalized communities from America’s foundational systems of discrimination and genocide.”
U.S. Solicitor General Elizabeth Prelogar, who represents the federal government before the Supreme Court, didn’t respond by press time to a request by The Epoch Times for comment.