Brackeen v. Bernhardt and the Future of Adoption in the United States

A three year old boy might be responsible for the transformation of a U.S. child welfare law aimed at protecting Native American culture and rights throughout the adoption process. The Indian Child Welfare Act of 1978 (ICWA), which was enacted by Congress in response to a crisis of separation amongst Native families, is set to be evaluated by the Supreme Court in October. [1] If this term’s Supreme Court decides to rule the Act unconstitutional, this decision would dismiss some tribal sovereignty over the adoption processes and would devastatingly exacerbate the marginalization of Native peoples. 

The creation of the Act was driven by a federal response to the crisis of child separation occurring on tribal lands. A high number of Native children were being removed from their families by public and private institutions to be placed with non-Native families, whether that be for fostering or adoption. It was shown that 75-80% of Native families lose at least one child to the foster care system — many of which were unnecessary — as a result of cultural indifference or ignorance of Native practices. [2] These children were often unnecessarily removed from their families on the basis of drug use, which in many cases was related to a cultural practice or tradition. [3] This separation was detrimental to the development and life of many of these children. As a result, the ICWA was enacted to protect Native American families and to maintain the sanctity and sovereignty of Native cultural practices. The law delineates the role of state and tribal governments in welfare cases where the child is a part of a federally recognized tribe, and outlines federal standards for the removal and placement of Native children in adoptive or foster homes. An example of this is that the law requires that ‘preference’ be given to extended family members, tribe members, or other Native families when determining placement. [4] This preference is what has caused this Act to come into question. 

The main issue of the case is a complicated one that questions whether racial factors can influence adoption and child-welfare. The Act is also being scrutinized for potentially violating equal protection principles and intruding on state governance of family matters. The plaintiffs of the case claim that it is. Three couples, Jennifer and Chad Brackeen, Nick and Heather Libretti, and Jason and Danielle Clifford, sued in federal court in Texas in 2018 alongside the states of Texas, Louisiana, and Indiana. [5] Under the rationale that the Act violates the 5th Amendment’s guarantee of equal protection under the law, the plaintiffs posit that the statute racially discriminates against non-Native Americans. Lower court decisions have been largely supportive of the prosecution’s argument, but critical divisions within lower courts have led to the case’s hearing by the Supreme Court. 

In 2018, a federal judge ruled in favor of the petitioners, but the fight did not end there. Brought to a three judge panel of the 5th U.S. Circuit Court of Appeals, a divided court led to an en banc (full court) hearing of the case. The decision of this court was an equally divided 8-8 margin, in which the court affirmed the constitutionality of the law as a whole, while simultaneously splitting on the constitutionality of key portions of the Act under the premise that some provisions unconstitutionally commandeer the states’ rights to determine their own adoption regulation. [6] In a 325-page opinion, the court split evenly on the point that preferences for placing children with other families or with a licensed Native American foster home, under equal protection grounds and commandeering grounds. In its assessment of this claim, the court had to evaluate whether these were political or race-based classifications — determining the level of scrutiny involved. The court determined that the ICWA was enacted to further “tribal self-government and the survival of tribes,” and therefore the preferences and classifications in the case were political. This means that the court discussed the equal protection clause with rational-basis review, “which tolerates over inclusive classifications, underinclusive ones, and other imperfect means-ends fits.” [7] Therefore, the judges who disagreed with the equal-protection violation claim argued that it was a rational classification, one that was linked to the interests of tribal sovereignty and tribal self-government. On the other hand, those judges who disagreed claimed that the ICWA has no right to impose on state proceedings and that the ICWA links children to the “twilight between tribe and race.” [8] Regardless of this, the court ruled that the “Indian child” classification fails to rationally further the ICWA’s purpose of linking child to tribe, puts children’s wellbeing at risk simply because of their race, and therefore violates the 5th amendment’s equal protection component. This major divisiveness within the court has brought the case to the highest one of all. 

Although there are other components of this law that are being challenged, the race-based component is the most important. If the Court ruled the preference clause of the Act  unconstitutional, the decision could have detrimental effects on tribal sovereignty, governance, and the welfare of Native children. Children from Native tribes are far more likely to be removed from their homes than any other racial group; to ignore the significance of cultural ties in the development of Indigenous children would be naive. [9] Not only is the welfare of the individual child important, but this decision could extend to other matters of tribal sovereignty. Legal experts in favor of the law claim that the equal protection argument and commandeering narrative could extend to casino laws, land, and water rights, further threatening tribal sovereignty, governance, and income. There has to be a level of sovereignty and independence in matters that concern individual tribes, and this case is crucial to maintaining tribal independence in a modern and transforming environment. As the final court opinion states: “[26 states and the District of Columbia] strongly contend that ICWA is constitutional and have no problem applying it in their state court systems; indeed, they view ICWA as the ‘gold standard’ for child welfare practices and a ‘critical tool in managing their relationships with the Indian tribes within their borders.” [10] To overturn this Act would open the door to a potential landslide of threatening decisions to Indigenous rights and sovereignty, and it will be crucial to observe how the Supreme Court addresses these issues. 

edited by Kate Strong

Sources: 

[1] “Indian Child Welfare Act (ICWA) | Indian Affairs.” Accessed April 10, 2022. https://www.bia.gov/bia/ois/dhs/icwa.

[2] “Indian Child Welfare Act (ICWA) - Child Welfare Information Gateway.” Accessed April 10, 2022. https://www.childwelfare.gov/topics/systemwide/diverse-populations/americanindian/icwa/.

 [3]  “Indian Child Welfare Act (ICWA) | Indian Affairs.” Accessed April 10, 2022. https://www.bia.gov/bia/ois/dhs/icwa.

[4] Liptak, Adam. “Supreme Court to Hear Challenge to Law on Adopting Native American Children.” The New York Times, February 28, 2022, sec. U.S. https://www.nytimes.com/2022/02/28/us/supreme-court-native-american-children.html

[5] Hoffman, Jan. “Who Can Adopt a Native American Child? A Texas Couple vs. 573 Tribes.” The New York Times, June 5, 2019, sec. Health. https://www.nytimes.com/2019/06/05/health/navajo-children-custody-fight.html.

[6] Journal, A. B. A. “In 325-Page Opinion, En Banc 5th Circuit Splits on Preference for Tribes in Native American Adoptions.” ABA Journal. Accessed April 10, 2022. https://www.abajournal.com/news/article/in-325-page-opinion-5th-circuit-splits-on-federal-provision-giving-tribes-preference-in-native-american-adoptions.

[7] Brackeen v. United States of America, No. 18-11479 (n.d.). 

[8] Brackeen v. United States of America, No. 18-11479 (n.d.). 

[9]  Chung, Andrew. “U.S. Supreme Court Takes up Dispute over Native American Adoption Law.” Reuters, February 28, 2022, sec. United States. https://www.reuters.com/world/us/us-supreme-court-takes-up-dispute-over-native-american-adoption-law-2022-02-28/.

[10]  “Indian Child Welfare Act (ICWA) | Indian Affairs.” Accessed April 10, 2022. https://www.bia.gov/bia/ois/dhs/icwa.