The U.S. Supreme Court hears arguments Wednesday in a case that pits several prospective adoptive parents and the state of Texas against the Indian Child Welfare Act — a federal law aimed at preventing Native American children from being separated from their extended families and their tribes.

This is a case that, more than usual, is steeped in American history. It's also a case that, more than usual, will resonate with the nine justices, seven of whom are parents, including two who have adopted children.

A brief history of the law

In 1978, Congress, after extensive hearings, found that public and private agencies had taken hundreds of thousands of American Indian children from their homes, sometimes by force. These agencies then placed the children in institutions or with families that had no tribal connections.

"About a third of native children were adopted away through ... child welfare agency actions," says Chuck Hoskin Jr., the chief of the Cherokee Nation. "And of that group, about 85% were adopted outside of tribal families."

The tribes saw these actions as a threat to their very existence, and Congress agreed. In response, Congress passed the Indian Child Welfare Act of 1978, known by the acronym "ICWA."

ICWA established minimum federal standards for removing native children from their families and required state courts to notify tribes when an American Indian child is removed from his or her home outside of a reservation. It also implemented a framework for foster and adoption placements that is at issue in this case. The framework requires first preference be given to a member of the child's extended family, then other members of the tribe, and if neither of those is available, a home with a different tribal family.

The case at the heart of the challenge

Now, however, the state of Texas and several families who are adopting American Indian children are challenging the law in court. They contend it amounts to an unconstitutional racial preference, and that the federal law impermissibly intrudes on state autonomy.

Jennifer and Chad Brackeen, from the the Dallas Fort Worth area, are among the prospective adoptive parents who are challenging the law. The couple fostered a baby born to a Navajo mother and a Cherokee father, and, after the native mother's parental rights were terminated by the state, the Brackeens adopted the boy, with the agreement of the tribe. When the same biological mother had another child, a girl, who entered the foster system, the Brackeens got her transferred from another foster home to their home. Now they are seeking to adopt her, too, over the objections of the tribe and the child's great aunt.

"We feel like her closest living relative is her brother ... that's why we pushed to try to get her placed with us," explains Jennifer Brackeen, an anesthesiologist.

"It's heartbreaking to us that there are laws out here that say it's better for her to live in a tribal home, any tribal home ... before she is allowed to stay in our home with her brother," adds Chad Brackeen, a civil engineer who stays home with the children.

The Brackeens' lawyer, Matthew McGill, says: "The real injustice of [ICWA] is that it deprives children of an individualized assessment of their own best interests, and it replaces that ... test with this hierarchy of preferences."

The tribes' view

But the tribes say that the best interests of the child are being considered.

"ICWA doesn't prevent an individualized assessment of the best placement for each child," says Kathryn Fort, director of the Indian Law Clinic at Michigan State University. State courts do this type of assessment "every day," she says, adding, "I personally don't know a state court judge who would be comfortable being told that they weren't allowed to do an individualized assessment."

But for an American Indian child, Fort says, that individualized assessment includes consideration of the child's relationship with her relatives, her language, her religion, and her tribal tradition.

"A child isn't separate from her tribe," she adds. "That child is sacred to that tribe."

Representing the Brackeens in the Supreme Court, lawyer McGill will tell the justices that ICWA's provisions amount to an unconstitutional racial classification.

"It categorizes children based on whether the children are Indian or not Indian," he argues. "And then it categorizes prospective parents based on whether they are Indian."

The Biden administration, like past administrations of both political parties, is defending the law. Citing a string of precedents dating back to the early days of the republic, the government says that ICWA draws classifications based not on race but on connections to tribal groups. And under the Constitution, those tribal groups are separate sovereign nations, essentially a political group.

Lawyer Ian Gershengorn, representing the tribes, notes that "from the very first moments of our constitutional history Congress has legislated for Indians," and therefore, he maintains, "the idea that somehow doing so violates the Equal Protection Clause or is an impermissible racial classification just seems to me impossible to square with the text" of the Constitution.

The family's argument

The Constitution does indeed give Congress nearly complete power to legislate on matters involving trade and relations with American Indian tribes. That constitutional provision is called the Indian Commerce Clause. But the Brackeens counter that their case is about a child, identified as Y.R.J., not about commerce.

Y.R.J. "is not the property of the Indian tribe," lawyer McGill says. "She is a citizen of the Unites States and also a citizen of the state of Texas ... there is no reasons why this child should not have all the same rights as every other child born in the state of Texas."

The state of Texas is challenging ICWA on separate grounds, as well. The state maintains that the federal statute is unconstitutionally forcing the state to carry out a federal mandate, and in doing so is essentially violating the state's own regimen for dealing with adoptions.

Lawyer Gershengorn rejects that argument out of hand, noting that in many areas of the law, Congress tells the states how they must comply with a federal mandate. He points, for example, to a federal law telling the states that they can't make a child custody determination based solely on the fact that one of the parents is a deployed servicemember. Or, he says, consider the immunity that Congress has given to gun manufacturers in state court. "Nobody thinks that's problematic," that a state court is forced to follow what Congress said, he observes.

There is no way to know how many thousands of native children are removed from a biological parent's home, or how many are involved in subsequent adoptions. But professor Fort says most of these cases are not contentious, noting that nationwide, from 2015 to 2021, there were appeals in just 254 cases.

That is no comfort to those involved in months or years of adoption disputes, nor is it any comfort to the more than 500 American Indian tribes who see this case as a foot in the door that could lead to other cases challenging their rights involving land, water, oil, mineral, and highly profitable gaming rights.

Copyright 2022 NPR. To see more, visit https://www.npr.org.

Transcript

STEVE INSKEEP, HOST:

The Supreme Court hears arguments tomorrow about adoptions of Native American children. Texas and several parents want the court to overturn a federal law, a rule that makes it harder to separate kids from their extended families or tribes. Here's NPR's legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: This is a case that more than usual is steeped in American history. It's also a case that more than usual will resonate with the justices, seven of whom are parents, including two who have adopted children. In 1978, Congress held extensive hearings and found that public and private agencies over time had taken hundreds of thousands of Indian children from their homes, sometimes by force, and placed them in institutions or families with no ties to their tribes. Chuck Hoskin Jr. is the current chief of the Cherokee Nation.

CHUCK HOSKIN JR: About a third of native children were adopted away through child welfare agency actions. And that group, about 85% were adopted outside of tribal families.

TOTENBERG: The tribes saw these actions as a threat to their very existence, and so did Congress. In 1978, it passed the Indian Child Welfare Act, known by the acronym ICWA. The law established minimum federal standards for removing Native children from their families, required state courts to notify tribes when an Indian child is removed from his or her home - and required that in foster and adoption placements, first preference be given to a member of the child's extended tribal family, then other members of the tribe and if neither of those is available, a home with a different tribal family. Now, however, the state of Texas and several families who were adopting Indian children are challenging the law in court.

They contend it amounts to an unconstitutional racial preference, and that the federal law impermissibly intrudes on state law. Jennifer and Chad Brackeen are among the prospective adoptive parents who are challenging the law. The couple, with two biological children of their own, fostered a baby born to a Navajo mother and a Cherokee father in the Dallas Fort Worth area. And when the mother's parental rights were terminated by the state, the Brackeens adopted the boy. When the same biological mother had another child, a girl, the Brackeens moved to get her transferred from another foster home to theirs. And now they're seeking to adopt her, too, over the objections of the tribe and the child's great aunt.

JENNIFER BRACKEEN: We feel like her closest living relative is her brother. That's why we pushed to try to get her placed with us.

CHAD BRACKEEN: It's heartbreaking to us that there are laws out here that say it is better for her to live in a tribal home, any tribal home, before she is allowed to stay in our home with her brother.

TOTENBERG: Representing the Brackeens in the Supreme Court, lawyer Matthew McGill will tell the justices that ICWA's provisions amount to an unconstitutional racial classification.

MATTHEW MCGILL: It categorizes children based on whether the children are Indian or not Indian. And then it categorizes prospective parents based on whether they are Indian.

TOTENBERG: The Biden administration, like past administrations of both political parties, is defending the law. Citing a string of precedents dating back to the early days of the republic, the government says that ICWA draws classifications based not on race, but on connections to tribal groups. And under the Constitution, those tribal groups are separate, sovereign nations, essentially a political group. Lawyer Ian Gershengorn represents the tribes.

IAN GERSHENGORN: From the very first moments of our constitutional history, Congress has legislated for Indians. And so the idea that somehow doing so violates the equal protection clause or is an impermissible racial classification just seems to me impossible to square with the text.

TOTENBERG: The Brackeens' lawyer counters with a different argument.

MCGILL: The real injustice of ICWA is that it deprives children of an individualized assessment of their own best interests. And it replaces that individualized best interests of the child test with this hierarchy of preferencing.

KATHRYN FORT: ICWA does not prevent individualized assessment of children and where they should be.

TOTENBERG: Kathryn Fort is director of the Indian Law Clinic at Michigan State University.

FORT: Our state courts do that every day. I personally don't know a state court judge who would be comfortable being told that they weren't allowed to do an individualized assessment.

TOTENBERG: But for an Indian child, she says, that individualized assessment includes consideration of the child's relationship with her relatives, her language, her religion and her tribal tradition.

FORT: The child isn't separate from her tribe. That child is sacred to that tribe.

TOTENBERG: Ian Gershengorn adds this.

GERSHENGORN: I think one of the oddest parts of the other side's argument is that they fault Congress for singling out tribes for special treatment when the Constitution itself singles out tribes for special treatment.

TOTENBERG: The Constitution does, indeed, give Congress nearly complete power to legislate on matters involving trade and relations with Indian tribes. That constitutional provision is called the Indian Commerce Clause. But the Brackeens counter that their case is about a child identified as YRJ.

MCGILL: YRJ is not, you know, the property of the Indian tribe.

TOTENBERG: Lawyer Matthew McGill.

MCGILL: He is a citizen of the United States and also a citizen of the state of Texas. And there is no reason why this child should not have all of the same rights as every other child born in the state of Texas.

TOTENBERG: The tribes acknowledge that this child was removed from her biological mother's home because of the mother's drug addiction. But they add that this doesn't mean that the tribes have no interest in her subsequent adoption. There's no way to know how many thousands of Native children are removed from a biological parent's home or how many are involved in subsequent adoptions.

But Professor Fort says most of these cases are not contentious, noting that nationwide, from 2015 to 2021, there were appeals in only 254 cases. That's no comfort to those involved in months or years of adoption disputes, nor is it any comfort to the more than 500 Indian tribes who see this case as a foot in the door that could lead to other cases challenging Indian preferences involving land, water, fishing rights and even gaming rights.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF SOPHIE HUTCHINGS' "EMPTY CITY") Transcript provided by NPR, Copyright NPR.

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