North Dakota Law

Updates from the University of North Dakota School of Law.

Professor Lewerenz quoted as an expert: The Supreme Court and the Indian Child Welfare Act: What’s at Stake in Brackeen Case

Brackeen v. Haaland could change the future of Indigenous rights.

MARCH 8, 2023 

At age nine, tragedy struck Autumn Adams’ life. Her father passed away and her mother was deemed unfit to care for her, leaving Adams with an uncertain future.

Adams, who is a member of the Yakama Nation, a federally recognized Native tribe, recalls overhearing officers from Child Protective Services discuss the possibility of moving her to a non-Native home if they couldn’t soon find a Native family to place her with. The idea terrified her.

“At that point in my life, I had everything I recognized as home ripped away from me,” she tells Teen Vogue. “I had to bury my father. I had to be ripped from my mother’s arms. The only thing that was left that gave me that connection was my extended family and culture.”

Adams was eventually placed with family in a multigenerational home that included her maternal aunt and grandmother. Now a law student, Adams credits this upbringing with enabling her to stay close to her culture and achieve success. “I was directly able to learn from my aunt, my cousins, my grandmother, my other aunts and uncles during that time — what it means to have perseverance, what it means to have responsibility and respect, the definition of grit,” she explains. “It’s through those lessons that I’ve broken every negative statistic not only about former foster youth but about Native former foster youth.”

In November, the Supreme Court heard arguments for a case that could forever change the landscape of adoption for Native youth like Adams. The case, Brackeen v. Haaland, focuses on the legislation that helped keep Adams’ family together: the Indian Child Welfare Act (ICWA), a landmark law from 1978 that prioritizes placing Native kids with their family or tribe. Under the ICWA, a child’s tribe is notified and given control over the adoption process; the ICWA also prioritizes placement with a child’s family or, if the former two are unavailable, tribal members and other Native tribes. These preferences don’t mean that a child must be placed in a Native home, but the process does recognize tribal sovereignty and defers to its authority.

The plaintiffs in Brackeen argue that the law doesn’t act in the best interests of children and racially discriminates against white people. At the center of the case are three non-Native couples at varying stages of attempting to adopt Native children. The Brackeens have already adopted a Native boy and hope to adopt his half-sister; the Cliffords wanted to adopt an 11-year-old Native girl, but she was placed with her grandmother instead; the Librettis successfully adopted a Native child, but maintain that the process violated their constitutional rights (the biological mother of the Librettis’ adopted child is also a plaintiff). Depending on the Court’s decision, the ICWA might be overturned, with repercussions that could upend the legal basis for tribal sovereignty.

Brackeen has garnered significant attention from the Native community, with more than 450 tribal nations filing amicus briefs in support of the ICWA. Life before the ICWA was especially brutal for Native families. It was estimated that 25-35% of Native kids were removed from their homes and raised by non-Native families.

Non-Native institutions for Native children have a violent history, including abusive boarding schools, which were designed to destroy the connection children felt to Native culture and are linked to at least 500 deaths in the US. Multiple studies of Indigenous people around the world indicate that having a connection to identity and culture translates to improved well-being.

For Jamie Nelson, a Choinumni Yokuts activist, being stripped of his culture at an early age led to feelings of intense grief and disconnection from his people. Nelson was adopted in the 1970s before the ICWA was passed. He and his siblings were separated and sent to different homes, which he says proved to be a deeply negative experience. It wasn’t until his 20s that he began to fully explore his identity, though he still struggles with an abiding sense of estrangement at Native community events.

“I feel like I don’t belong in that setting. I am worried that I won’t be perceived as Native enough, by the way that I talk, the way that I act and behave,” Nelson tells Teen Vogue. “Being removed from Native culture, it’s kind of deteriorated my ability to even see clearly. Every movement I make within the Native spectrum, I always doubt it.”

Stephanie Amiotte, a member of the Oglala Lakota (Sioux) Tribe and legal director for the ACLU of North Dakota, South Dakota, and Wyoming, tells Teen Vogue that if the ICWA is overturned, history could repeat itself. “It’s going to be a real assault on Indian children and Indian families,” she says. “It’s just going to be another way of assimilating Indian children and destroying their ties to their culture, their community, and their heritage. It’s really an assault on indigineity at its very core.”

According to Dan Lewerenz, a member of the Iowa Tribe of Kansas and Nebraska and a former attorney with the Native American Rights Fund who currently works at the University of North Dakota Law School, the plaintiffs have four central arguments against the ICWA: The first two are jargon-heavy, legally technical arguments that, respectively, assert the ICWA allows Congress to unconstitutionally delegate tribes the power to rewrite federal laws and that the ICWA forces state actors to carry out federal duties; the other two arguments have the highest stakes for the Native community.

One argument says that the ICWA goes outside the bounds of the Commerce Clause, essentially making the claim that Congress can’t regulate anything to do with Indian tribes outside of commerce. If the Supreme Court agrees with this argument, it could impact other noneconomic laws about Indian tribes, especially laws that govern public safety on tribal lands.

The other, potentially more catastrophic argument is that the ICWA violates the equal protection principle inferred in the right to due process. This claim asserts that Indian is a racial category, bucking the conventional legal understanding of Indian as a category based on tribal membership and a tribe’s political relationship to the United States. Because Congress cannot legislate on the basis of race, if the Supreme Court accepts this argument and changes the definition of Indian, it could undo centuries of precedent. Says Lewerenz, “Literally every statute Congress has passed with respect to Indians, going back to the very first Congress, is going to be at risk.”

Critics of the plaintiffs challenging the ICWA point out that support for their cases has come from conservative entities like the Goldwater Institute, which, according to the Intercept, has “participated in 12 cases challenging ICWA in the last five years,” and individuals like Matthew McGill, a partner at Gibson Dunn law firm, which previously challenged a law that permits and regulates Indian casinos — and has a history of working for Big Oil, including Energy Transfer Partners, the builders of the Dakota Access Pipeline.

Teen Vogue reached out to the Goldwater Institute and McGill for comment. The Goldwater Institute declined to comment; McGill did not respond to Teen Vogue’s request.

For Nelson, the case reeks with an unwelcome familiarity. “There’s always some sort of legislative tool that’s pinning us back somehow,” he says. “When [Native Americans] hear ICWA is being affected or might be overturned, and then we start looking at the finer details, it starts to stink of the same historic things that we’ve encountered. And we don’t need much, as a people, for the alarms to go off.”

Lewerenz acknowledges that the interests of the individual families may not be the same as those of the institutions working on their behalf, but he still believes their actions are putting an entire community in jeopardy. “When one of their arguments boils down to ‘the federal government should not be allowed to treat Indians differently from anyone else,’ it is hard to believe that they want what’s best for Indians (and Indian children). Unless,” he concludes, “their conception of what’s best is that Indians give up all of those things that their ancestors negotiated and fought and died to preserve.”

In oral arguments before the Supreme Court, McGill claimed that the ICWA did not act in the best interest of children. McGill said that tribal enrollment shouldn’t override a child’s liberty. Although the SCOTUS decision is still unknown, the SCOTUS blog said the justices did not seem “inclined to strike down the law in its entirety,” although they did express concerns about some elements of the ICWA.

Justices Neil Gorsuch, Amy Coney Barrett, and Elena Kagan seemed to support congressional authority in Indian affairs. Gorsuch, in particular, noted that Native family law has always been within the jurisdiction of the federal government and seemed worried that overruling the ICWA would mean overturning laws designed to benefit Native people. The portion of the ICWA that justices seemed to find most worrisome was the ICWA’s “third preference,” or the idea that if a child can’t be placed with family or tribal members, preference should go to members of other tribes. Chief Justice John Roberts questioned whether having Native adoptive parents was prioritized before the best interests of the child, while Coney Barrett said it suggested tribes were interchangeable.

Outside the courthouse, Autumn Adams watched the arguments unfold on the internet. The line to observe the hearing in person had been cut off just before her, so she joined the Native people from different tribes who gathered to share in testimony and song. Adams remembers the moment as “powerful.” “To share in such a deep purpose as protecting our children just reaffirms my drive and my decision to advocate for and preserve the Indian Child Welfare Act,” she says.

Though years removed from her childhood, Adams’ passion for Native child welfare still runs deep. Now that she’s older she’s been able to understand her mother’s issues as a product of a larger system of oppression against Native people. She’s also taken up the mantle as caregiver to her youngest brother and sister, a role she has assumed with the utmost seriousness.

“Everything we do, every interaction we have in this world, with the environment, with people, with governments, everything, we always act in a way that remembers the next generation,” Adams concludes. “Children are and will always be our future. The most important thing we could do is to protect the future.”

Read the original teenVogue article