The Circuit Court of Appeals for the Classification of Native Children Under the U.S. Immigration and Natural Resources Act (ICWA). The Plaintiffs’ Attorneys, the Chief, and the Supreme Court

The plaintiffs also assert that the law discriminates against Native children, stating in a court filing that it places them “in a disfavored position, depriving them of a placement decision based on their best interests, and instead requiring placements based on the child’s “biolog[y].”

Chuck Hoskin Jr., the Chief of the Cherokee Nation, says there were a third of native children who were adopted away. “And of that group, about 85% were adopted outside of tribal families.”

“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.

There are laws that say it’s better for her to live in a tribal home with her brother, before we can let her stay with us, according to Chad, our civil engineer.

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.”

“It categorizes children based on whether the children are Indian or not Indian,” he argues. Prospective parents are grouped based on whether they are Indian.

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

Both sides of the political spectrum have defended the law during the Biden administration. 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 Constitution does indeed give Congress nearly complete power to legislate on matters involving trade and relations with Indian tribes. The Indian Commerce Clause is a constitutional provision. 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 both Texas and the United States. 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 says that the federal statute is unconstitutionally forcing the state to carry out a federal mandate, and that doing so is breaking 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.

The Forcing of Native Children to a Boarding School: Resolving the Cases of Gibson Dunn and Melissa Reese

There is no way to know how many native children are removed from their biological parents’ homes and 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 isn’t any comfort to the hundreds of Indian tribes who have been involved in months or years of adoption disputes, and it’s no comfort to the high cost of litigation that could arise from this case.

Throughout its history, the US has adopted policies that threatened to wipe out Native American tribes and their cultures – or as one Army officer put it, “kill the Indian in him, and save the man.”

It establishes placement preferences for when a Native child is found a home, giving priority to other members of the child’s tribe and then other Native families.

The case is about a White couple from Texas who ran into problems when attempting to adopt a boy they were fostering. Litigation giant Gibson Dunn took on the case for free, and the couple was ultimately able to adopt the child over a Navajo family.

“To say that this is all just about race or racism really undermines the separate sovereignty that these governments have and their separate identities as tribal nations,” says Elizabeth Reese, an assistant professor of law at Stanford University and a scholar of tribal and federal Indian law.

Thousands of Native children were forcibly removed from their homes in the 19th and 20th century and sent to boarding schools in an attempt to integrate them into White American society. They were forbidden from speaking their languages and stripped of their cultures, and an initial investigation found that the deaths of at least 500 American Indian, Alaska Native, and Native Hawaiian children could be attributed to the boarding schools – a number that is thought to be an underestimate.

Opponents of the Indian Child Welfare Act, which include Republican states and conservative organizations such as the Goldwater Institute, argue that the Indian Child Welfare Act goes against the best interests of Native children by imposing standards that make it harder for them to be adopted into stable, loving homes.

Critics of the law say that its preferences are problematic because more Native children in foster care than there are homes to place them in.

Kate Fort, Director of the Indian Law Clinic at Michigan State University, said that courts have to consider the child’s best interests because they include a child’s connection to their tribe, culture and community.

We are in a different situation when looking for a permanent placement than we are when we are in a foster care placement. When a child ages out of a stranger Foster care home, we are not sure what to make of her. It is often with relatives and their communities for all kids.

The Role of Tribal and Nation-Structured Citizenship in the U.S. and Beyond, Deputy Attorney General Chrissi Nimmo

“There is some biological aspect to citizenship in that I’m a Cherokee citizen, and my children are eligible for citizenship,” Nimmo said. It is the same biological aspect when one is born in the U.S.

But tribal citizenship isn’t limited to ancestry, said Cherokee Nation Deputy Attorney General Chrissi Nimmo. Just as in the US, there are other ways of becoming a citizen beyond where a person is born. For example, the Cherokee Nation grants citizenship to the descendants of people once enslaved by the tribe, whether or not they have Cherokee ancestry.

“There’s nothing that is more central to core self-governance and sovereignty than having the next generation of citizens in your government,” Nimmo said.