{"id":2340,"date":"2022-10-17T16:12:46","date_gmt":"2022-10-17T21:12:46","guid":{"rendered":"https:\/\/blogs.und.edu\/ndlaw\/?p=2340"},"modified":"2022-10-17T16:12:46","modified_gmt":"2022-10-17T21:12:46","slug":"the-supreme-courts-latest-native-adoption-case-is-about-much-more-than-native-adoption-professor-lewerenz-interviewed","status":"publish","type":"post","link":"https:\/\/blogs.und.edu\/ndlaw\/2022\/10\/the-supreme-courts-latest-native-adoption-case-is-about-much-more-than-native-adoption-professor-lewerenz-interviewed\/","title":{"rendered":"The Supreme Court\u2019s Latest Native Adoption Case Is About Much More Than Native Adoption: Professor Lewerenz interviewed"},"content":{"rendered":"
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How conservative lawyers turned an obscure state adoption case into a vehicle that could allow the justices\u00a0 to throw centuries of well-settled Tribal law out the window.<\/h2>\n

Balls and Strikes<\/a><\/p>\n<\/div>\n

BY\u00a0YVETTE BORJA<\/a>\u00a0<\/span>\u00a0SEPTEMBER 14, 2022<\/span><\/div>\n
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Editor\u2019s note:<\/strong>\u00a0This month, we\u2019ll be taking a closer look at some of the most consequential cases the Supreme Court\u2014the most conservative Supreme Court in a century\u2014will decide in its upcoming term. Today:<\/i>\u00a0Brackeen v. Haaland,<\/em>\u00a0which the conservative lawyers and well-heeled corporations that have been chipping away at Tribal sovereignty hope will just get rid of Tribal sovereignty altogether.<\/i><\/p>\n

Long before President Donald Trump\u2019s nightmarish immigration policy made the phrase famous, a different family separation epidemic was underway: In the mid-20th century, private adoption organizations and public welfare agencies were removing roughly\u00a0one-third<\/a>\u00a0of Native children from their homes pursuant to a federal initiative known as the Indian Adoption Project, placing children in foster care, with adoptive families, or in institutions instead. Before that, the government sent Native children to special\u00a0boarding schools<\/a>\u00a0formed for the purpose of\u00a0assimilating Native children<\/a>\u2014schools that\u00a0were rife with \u201crampant physical, sexual, and emotional abuse.\u201d Hundreds of children died in the custody of a state that claimed to be acting in their best interests.<\/p>\n

In 1978, Congress responded by passing the\u00a0Indian Child Welfare Act<\/a>\u00a0with the goal of \u201cpromoting the stability and security of Indian tribes.\u201d The ICWA creates procedural safeguards in child welfare proceedings that prioritize kinship placements: When a child will be removed from their home, whether temporarily or permanently, the law gives preference to extended family members, members of the parents\u2019 Tribal nation, or any Native family. Only after examining these placement options can an agency place a Native child with a non-Native family.<\/p>\n

Chad and Jennifer Brackeen want to change all this. They are are challenging the ICWA in federal court, arguing (among other things) that it violates the Equal Protection Clause by creating impermissible racial classifications. The Supreme Court\u2019s forthcoming decision in\u00a0Brackeen v. Haaland<\/i>, in which the justices will hear oral argument in November, will have profound implications for the future of legislation aimed at preserving Tribal self-governance.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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A group of Omaha Indian boys in cadet uniforms, Carlisle Indian School, Pennsylvania (Photograph by J. N. Choate, ca 1880. BPA 2 #3273 \/ Bettmann \/ Getty Images)<\/p>\n<\/figcaption>

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In 2016, the Brackeens fostered a Native child, A.L.M, for a little over a year. When a Texas state court terminated the parental rights of A.L.M\u2019s biological parents, the Navajo Nation pushed to place him with an unrelated Native family; that arrangement ultimately didn\u2019t pan out, clearing the way for the Brackeens to adopt A.L.M. after all.<\/div>\n
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Not content simply to win their case and go home, however, the Brackeens\u2014suddenly backed by corporate lawyers whose Big Oil clients perhaps have a vested interest<\/a>\u00a0in the status of Tribal sovereignty\u2014launched a legal challenge to the ICWA, claiming that it illegally commandeers states to carry out a federal policy, and that it discriminates against non-Native people during the adoption process. (Or, as Erin Dougherty Lynch, a senior staff attorney of the Native American Rights Fund who co-wrote an\u00a0amicus<\/i>\u00a0brief<\/a>\u00a0in this case, puts it: \u201cTheir feelings were hurt.\u201d) Now, they are asking the Court to declare ICWA unconstitutional because they want to adopt A.L.M\u2019s younger sister, too, and claim the law will prevent them from doing so.<\/div>\n<\/div>\n<\/div>\n<\/figure>\n
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The intervening decades since the ICWA\u2019s passage have not made it less relevant today. Native children are removed from their homes at 2-3 times the rate of non-Native children,\u00a0according<\/a>\u00a0to the National Indian Child Welfare Organization. And as a coalition of child welfare organizations wrote in a\u00a0recent\u00a0amicus<\/i>\u00a0brief<\/a>\u00a0in a related Supreme Court case, the ICWA\u2019s focus on the fit between family and child make it objectively good policy\u2014 the \u201cgold standard for child welfare policies and practices that should be afforded to all children.\u201d To understand more about what\u2019s at stake in\u00a0Brackeen<\/i>, we spoke with Lynch and Daniel Lewerenz, a professor at the University of North Dakota School of Law and former staff attorney at NARF.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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Link to: Read more<\/a><\/span><\/div>\n<\/div>\n<\/div>\n<\/div>\n
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Balls & Strikes: What prompted Congress to pass the ICWA in the first place?<\/b><\/p>\n

Daniel Lewerenz<\/i>:\u00a0There was a long history of states disregarding Tribes in child welfare proceedings. ICWA is meant to affirm the place of Tribes in decisions concerning their children because Tribes have jurisdiction over their members, including their children, both on- and off-reservation.<\/p>\n

ICWA enacts minimum standards for state court proceedings to ensure that Indian children\u2019s best interests are protected\u2014things like notice to parents, so they can participate in child welfare proceedings, and notice to Tribes so that they can participate as well. ICWA contains evidentiary standards that make sure that state courts aren\u2019t making decisions based on an insufficient understanding of Tribal families and Tribal communities, which include placement preferences for foster care and adoption. Indian children are first placed with family. When that\u2019s not possible, they are placed within their Tribal community. And when that\u2019s not possible, they are placed with other Indian families.<\/p>\n

B&S: What parts of ICWA are being challenged in<\/b>\u00a0Brackeen<\/i><\/b>?<\/b><\/p>\n

Lewerenz<\/i>:\u00a0All of it. The plaintiffs argue that the ICWA creates impermissible racial classifications. For example, they point to the part of the law that defines \u201cIndian child,\u201d which includes some children who are not Tribal members, and argue that the definition must be racial because it goes beyond Tribal membership. They also argue that ICWA\u2019s preference for \u201cany Indian family\u201d is a racialized preference because it is not limited to the child\u2019s Tribe.<\/p>\n

What they\u2019re really doing is making a much broader challenge to all of Indian law by saying, \u201cThis is racial,\u201d as opposed to the political understanding that Congress and the courts have shared for the last 200-plus years.<\/p>\n

The definitive case on this question is\u00a0Morton v. Mancari<\/i><\/a>. In it, the Supreme Court says that if an act of Congress is directed at fulfilling Congress\u2019s unique obligation to Indians, then that is a political distinction, not a racial one, and the Court shouldn\u2019t disturb that law. The Court also says that when the law at issue is directed at advancing tribal self-governance, that threshold is easily met. But if you read Texas\u2019s brief, they actually stitch together sentences from\u00a0Mancari<\/i>\u00a0like Dr. Frankenstein to say that because ICWA is not about tribal self-governance, it does not meet the\u00a0Mancari\u00a0<\/i>standard.<\/p>\n

The Brackeens argue that the placement preference for \u201cany Indian family\u201d moves beyond Tribal self-governance. In doing so, they artificially narrow Tribal nations\u2019 relationship to the federal government in a way that Congress never intended. There are Tribes, for example, that were split for purposes of federal recognition. One easy example is that there are three federally-recognized Cherokee Tribes: the Eastern Band of Cherokee Indians in North Carolina, the Cherokee Nation in Oklahoma, and the United Band of Cherokee Indians in Oklahoma. A child who is a member of one of those Tribes, presumably, is not a member of either of the other two. Technically, a placement of a Cherokee Nation child with an Eastern Band family is not a placement\u00a0within that child\u2019s Tribe<\/i>, but that doesn\u2019t mean that it\u2019s a placement with a family that is different culturally.<\/p>\n

B&S: What are the possible outcomes here?<\/b><\/p>\n

Lewerenz<\/i>: If the Court were to narrow the field of Indian commerce so that it is coterminous with our understanding of interstate commerce, a lot of Indian law flies out the window. Congress has been legislating Indian affairs for more than 200 years, and that is never how Congress or the Court have understood congressional powers over Tribes.<\/p>\n

If the Court were to broadly rule that ICWA is unconstitutional on Equal Protection grounds, almost 200 years of legislative history becomes really hard to justify. A variety of states have implemented all or parts of ICWA into their own state law. So if the Court holds that ICWA is unconstitutional because it\u2019s based on race, those state law provisions will probably fail as well.<\/p>\n

If the Court rules on anti-commandeering grounds, states that voluntarily enacted parts of ICWA into state law would not have an issue because they did so independently. But it would still be a terrible blow to Tribes and families, because a lot of states have not implemented all of ICWA. This would create a patchwork of rights in different states for Native children in welfare proceedings.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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B&S: How are the Brackeens\u2019 lawyers using the <\/b>nondelegation doctrine<\/b><\/a> in their argument?<\/b><\/div>\n
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Lewerenz<\/i>:\u00a0Nondelegation has gotten a lot of attention as a conservative theory for limiting executive power. It is almost always about legislation that one faction believes gives too much discretion to the executive branch and, as such, effectively cedes congressional power.<\/div>\n<\/div>\n<\/div>\n<\/figure>\n
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That is not at all what\u2019s going on here. Section 1915(C) of ICWA says that if a Tribe has enacted its own placement preferences, state courts should follow them. The petitioners characterize this as a delegation to Tribes to rewrite federal law, which it absolutely is not. The only way I can rationalize them making this argument is that they believe they have a Court that is generally predisposed to nondelegation. They are hoping that if they put that buzzword out there, the justices will be too distracted, or too in favor of non-delegation generally, to actually think about the argument.<\/p>\n

B&S: How does this challenge to the ICWA fit into the history of ICWA challenges?<\/b><\/p>\n

Lewerenz<\/i>:\u00a0Until very recently, prior challenges arose somewhat organically. If someone was not happy with the way ICWA affected their case, they appealed through the state court system. Some of those cases were actually brought by\u00a0non<\/i>-Indian parents who thought that ICWA should apply to them because they saw that it afforded greater protections to parents. We often say that ICWA is the gold standard not just for Indian children, but for all children. We\u2019d love it if states and Congress enacted it more broadly.<\/p>\n

That was the case right up until\u00a0Adoptive Couple v. Baby Girl<\/i><\/a>, which came up through South Carolina state courts. Justice Samuel Alito, who wrote the opinion [in 2013], begins, \u201cThis case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3\/256) Cherokee.\u201d That\u2019s a strange way to start when that fact has nothing to do with the legal questions. Alito returns to that presentation of the facts later on, saying that if ICWA were to apply as a \u201cracial statute,\u201d he would have real Equal Protection concerns.<\/p>\n

That is why we are here now, in\u00a0Brackeen<\/i>. Justice Clarence Thomas concurred in\u00a0Adoptive Couple\u00a0<\/i>by raising concerns about the scope of congressional power in Indian affairs, and suggesting that ICWA may exceed that scope. Both of them were saying, \u201cHere\u2019s the case we want.\u201d<\/p>\n

Shortly after\u00a0Adoptive Couple,\u00a0<\/i>we had the first challenge to ICWA brought by the same attorneys representing the National Council for Adoption\u00a0in an\u00a0amicus<\/i>\u00a0brief<\/a>. The adoption industry\u2014the people who make tens of thousands of dollars on each transaction\u2014were trying to get the ICWA thrown out by making the arguments that Alito and Thomas were signaling their openness to. A second lawsuit was brought by the Goldwater Institute,\u00a0also an\u00a0amicus<\/i>\u00a0here<\/a>.<\/p>\n

The challengers lost both of those lawsuits. But this suit is a little bit different: There is a forum-shopping element to it. The Brackeens\u2019 attorneys filed this case in front of a judge who has a history of invalidating federal statutes and embracing conservative causes. They also signed up Texas as a party to the lawsuit. That made a big difference, because it allowed them to make anti-commandeering arguments, which otherwise are pretty hard for a non-state party to assert. This is the first time that a state has brought not only an Equal Protection challenge to the ICWA, but has also embraced this federalism-oriented argument that states are uniquely suited to make.<\/p>\n

B&S: How do the Brackeens have standing to challenge ICWA in the first place?\u00a0<\/b><\/p>\n

Lewerenz<\/i>:\u00a0You should ask them. The adoption at the heart of this case was resolved before it got to the Fifth Circuit Court of Appeals. The Brackeens claim they still have standing because they are trying to adopt the younger sister of the boy they already adopted\u2014they\u2019re making a \u201ccapable of repetition\u201d exception to mootness arguments. I don\u2019t think this case really fits in that framework, because they\u2019ve never amended their complaint to add that second adoption as an issue. Technically, that adoption falls outside of the claims in this case.<\/p>\n

The other thing that the Brackeens have argued is that there is another set of plaintiffs in Minnesota who are presenting the same issue, and who are still trying to adopt the child they fostered. However, that case also got resolved in Minnesota state courts in 2021, and the plaintiffs did not appeal to the U.S. Supreme Court, and the Brackeens never notified the Fifth Circuit.\u00a0 When you have multiple individual plaintiffs, a court can find that one plaintiff has standing and allow the whole case to go ahead. But if standing is based on the Minnesota case, there\u2019s a real question as to whether the Brackeens have standing at all.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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Carlisle Indian School c. 1903 (Photo by Frances Benjamin Johnston\/Library of Congress\/Corbis\/VCG via Getty Images)<\/p>\n<\/figcaption>

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B&S: That the justices are seriously considering the Brackeens\u2019 Equal Protection argument feels like a product of how Equal Protection doctrine has evolved. It seems like the conservative justices are moving towards a jurisprudence where, as Roberts has already <\/b>said<\/b><\/a>, \u201cThe way to stop discriminating on the basis of race is to stop discriminating on the basis of race\u201d\u2014as if everyone walks into the courtroom with the same blank slate.<\/b><\/div>\n<\/div>\n<\/div>\n<\/figure>\n
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Lewerenz:\u00a0<\/i>I think that\u2019s where the plaintiffs want to go. That\u2019s where the trial court judge wound up, and I think that there was a lot of sympathy for that argument on the Fifth Circuit as well.<\/p>\n

We want to remain confident that the Court is not going to go there, because there is such a long history of express delegations of power concerning Indians. Even if we assume that Indian is indeed a racial category, the Constitution gave Congress the power to act on that particular racialized basis.<\/p>\n

Erin Dougherty Lynch:\u00a0<\/i>The ICWA is still relevant today. There are states and jurisdictions where it has been inconsistently implemented, where there are disproportionate rates of Native children being removed from their homes, similar to what Congress saw when it was considering ICWA in the late 1970s. Alaska Native children are 20 percent of the state\u2019s population of children, yet they are 60 percent of those involved in the child welfare system.<\/p>\n

I would also point to both the\u00a0Casey Family Programs brief<\/a>, which talks about the benefits of ICWA not just for Native children, but for\u00a0all<\/i>\u00a0children\u2014how it\u2019s considered best practice in child welfare proceedings.These are not just things that people are saying, like, \u201cOh, anecdotally, this is what I find to be the best.\u201d These are research-based opinions.<\/p>\n

Kinship care is the heart and the very center of ICWA. When you look at the briefs supporting the Brackeens, there is a telling lack of serious discussion about what results in the best outcomes for children. Our opponents are trying to tear down these protections for Native children, when anyone who is engaged in child welfare work agrees that the answer is to build up the child welfare system so that it better mirrors the provisions of ICWA.<\/p>\n

Lewerenz:<\/i>\u00a0The medical and scientific communities are all on our side. If you\u2019re looking for child welfare organizations, they\u2019re all on our side. If you\u2019re looking at Indian country, it is entirely on our side. If you\u2019re looking at the states, 23 states joined the\u00a0amicus<\/i>\u00a0brief<\/a>\u00a0on the pro-ICWA side. There\u2019s a clear distinction in this case: On the pro-ICWA side, you have people who actually understand and study and care about children. On the other side, you have the attorney general of Texas, conservative think tanks, and people who make money marketing children.<\/p>\n

I\u2019m sure that the Brackeens love the child they have adopted, and love the child they are still trying to adopt. But they have chosen a path led by lawyers who are trying to burn down the whole system.<\/p>\n

This interview has been edited and condensed for clarity.<\/i><\/p>\n

Read the original article<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

How conservative lawyers turned an obscure state adoption case into a vehicle that could allow the justices\u00a0 to throw centuries of well-settled Tribal law out the window. Balls and Strikes BY\u00a0YVETTE BORJA\u00a0\u00a0SEPTEMBER 14, 2022 Editor\u2019s note:\u00a0This month, we\u2019ll be taking a closer look at some of the most consequential cases the Supreme Court\u2014the most conservative […]<\/p>\n","protected":false},"author":61,"featured_media":2315,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[504],"tags":[988,983,989,632,990],"class_list":["post-2340","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-faculty","tag-daniel-lewerenz","tag-indian-law","tag-native-adoption","tag-supreme-court","tag-tribal-law"],"acf":[],"yoast_head":"\nThe Supreme Court\u2019s Latest Native Adoption Case Is About Much More Than Native Adoption: Professor Lewerenz interviewed - North Dakota Law<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/blogs.und.edu\/ndlaw\/2022\/10\/the-supreme-courts-latest-native-adoption-case-is-about-much-more-than-native-adoption-professor-lewerenz-interviewed\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Supreme Court\u2019s Latest Native Adoption Case Is About Much More Than Native Adoption: Professor Lewerenz interviewed - North Dakota Law\" \/>\n<meta property=\"og:description\" content=\"How conservative lawyers turned an obscure state adoption case into a vehicle that could allow the justices\u00a0 to throw centuries of well-settled Tribal law out the window. 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