{"id":2589,"date":"2023-03-23T10:04:28","date_gmt":"2023-03-23T15:04:28","guid":{"rendered":"https:\/\/blogs.und.edu\/ndlaw\/?p=2589"},"modified":"2023-03-23T10:04:28","modified_gmt":"2023-03-23T15:04:28","slug":"professor-lewerenz-quoted-as-an-expert-the-supreme-court-and-the-indian-child-welfare-act-whats-at-stake-in-brackeen-case","status":"publish","type":"post","link":"https:\/\/blogs.und.edu\/ndlaw\/2023\/03\/professor-lewerenz-quoted-as-an-expert-the-supreme-court-and-the-indian-child-welfare-act-whats-at-stake-in-brackeen-case\/","title":{"rendered":"Professor Lewerenz quoted as an expert: The Supreme Court and the Indian Child Welfare Act: What\u2019s at Stake in Brackeen Case"},"content":{"rendered":"

Brackeen v. Haaland<\/em>\u00a0could change the future of Indigenous rights.<\/h2>\n
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\n
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teenVogue<\/span><\/span><\/span><\/a><\/p>\n

BY <\/span>SOPHIE HAYSSEN<\/a><\/span><\/span><\/p>\n<\/div>\n

MARCH 8, 2023 <\/p>\n

At age nine, tragedy struck Autumn Adams\u2019 life. Her father passed away and her mother was deemed unfit to care for her, leaving Adams with an uncertain future.<\/p>\n

Adams, who is a member of the\u00a0Yakama Nation<\/a>, 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\u2019t soon find a Native family to place her with. The idea terrified her.<\/p>\n

\u201cAt that point in my life, I had everything I recognized as home ripped away from me,” she tells\u00a0Teen Vogue<\/em>. “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.\u201d<\/p>\n

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. \u201cI was directly able to learn from my aunt, my cousins, my grandmother, my other aunts and uncles during that time \u2014 what it means to have perseverance, what it means to have responsibility and respect, the definition of grit,\u201d she explains. \u201cIt’s through those lessons that I’ve broken every negative statistic not only about former foster youth but about Native former foster youth.\u201d<\/p>\n<\/div>\n<\/div>\n

\n

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,\u00a0Brackeen v. Haaland<\/em>, focuses on the legislation that helped keep Adams\u2019 family together: the\u00a0Indian Child Welfare Act<\/a>\u00a0(ICWA), a landmark law from 1978 that prioritizes placing Native kids with their family or tribe. Under the ICWA, a child\u2019s tribe is notified and given control over the adoption process; the ICWA also prioritizes placement with a child\u2019s family or, if the former two are unavailable, tribal members and other Native tribes. These preferences\u00a0don\u2019t mean<\/a>\u00a0that a child\u00a0must<\/em>\u00a0be placed in a Native home, but the process does recognize tribal sovereignty\u00a0and\u00a0defers to its authority<\/a>.<\/p>\n

The plaintiffs in\u00a0Brackeen<\/em>\u00a0argue that the law doesn\u2019t act in the best interests of children and racially discriminates against white people. At\u00a0the center of the case<\/a>\u00a0are 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\u00a0successfully adopted a Native child<\/a>, but maintain that the process violated their constitutional rights (the biological mother of the Librettis\u2019 adopted child is also a plaintiff). Depending on the Court’s decision, the ICWA might be overturned, with repercussions that could\u00a0upend the legal basis for tribal sovereignty<\/a>.<\/p>\n

Brackeen<\/em>\u00a0has 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%\u00a0of Native kids were removed from their homes and raised by non-Native families.<\/p>\n

Non-Native institutions for Native children have a violent history, including\u00a0abusive boarding schools<\/a>, which were designed to destroy the connection children felt to Native culture and are linked to\u00a0at least 500 deaths<\/a>\u00a0in the US.\u00a0Multiple<\/a>\u00a0studies<\/a>\u00a0of\u00a0Indigenous people<\/a>\u00a0around the world indicate that having a connection to identity and culture translates to improved well-being.<\/p>\n

For Jamie Nelson, a Choinumni Yokuts activist, being stripped of his culture\u00a0at an early age<\/a>\u00a0led 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.<\/p>\n

\u201cI 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,\u201d Nelson tells\u00a0Teen Vogue<\/em>. \u201cBeing 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.\u201d<\/p>\n

Stephanie Amiotte, a member of the Oglala Lakota (Sioux) Tribe and legal director for the ACLU of North Dakota, South Dakota, and Wyoming, tells\u00a0Teen Vogue<\/em>\u00a0that if the ICWA is overturned, history could repeat itself. \u201cIt’s going to be a real assault on Indian children and Indian families,\u201d she says. \u201cIt’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.\u201d<\/p>\n

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.<\/p>\n

One argument says that the ICWA goes outside the bounds of the Commerce Clause, essentially making the claim that Congress can\u2019t 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.<\/p>\n

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\u2019s 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, \u201cLiterally every statute Congress has passed with respect to Indians, going back to the very first Congress, is going to be at risk.\u201d<\/p>\n

Critics of the plaintiffs challenging the ICWA point out that\u00a0support for their cases<\/a>\u00a0has come from conservative entities like the\u00a0Goldwater Institute<\/a>, which, according to the Intercept, has \u201cparticipated in 12 cases challenging ICWA in the last five years,\u201d and individuals like\u00a0Matthew McGill<\/a>, a partner at Gibson Dunn law firm, which previously challenged a law\u00a0that permits and regulates Indian casinos<\/a>\u00a0\u2014 and has a history of working for Big Oil, including\u00a0Energy Transfer Partners<\/a>, the builders of the Dakota Access Pipeline.<\/p>\n

Teen Vogue<\/em>\u00a0reached out to the Goldwater Institute and McGill for comment. The Goldwater Institute declined to comment; McGill did not respond to\u00a0Teen Vogue<\/em>\u2019s request.<\/p>\n

For Nelson, the case reeks with an unwelcome familiarity. \u201cThere’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.\u201d<\/p>\n

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. \u201cWhen one of their arguments boils down to \u2018the federal government should not be allowed to treat Indians differently from anyone else,\u2019 it is hard to believe that they want what\u2019s best for Indians (and Indian children). Unless,” he concludes, “their conception of what\u2019s best is that Indians give up all of those things that their ancestors negotiated and fought and died to preserve.\u201d<\/p>\n

In oral arguments before the Supreme Court, McGill claimed that the ICWA did not act in the best interest of children. McGill said that\u00a0tribal enrollment shouldn\u2019t override<\/a>\u00a0a child\u2019s liberty. Although the SCOTUS decision is still unknown, the\u00a0SCOTUS blog<\/a>\u00a0said the justices did not seem \u201cinclined to strike down the law in its entirety,\u201d although they did express concerns about some elements of the ICWA.<\/p>\n

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\u2019s \u201cthird preference,\u201d or the idea that if a child can\u2019t 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.<\/p>\n

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 \u201cpowerful.\u201d \u201cTo 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,\u201d she says.<\/p>\n

Though years removed from her childhood, Adams’ passion for Native child welfare still runs deep. Now that she\u2019s older she\u2019s been able to understand her mother\u2019s issues as a product of a larger system of oppression against Native people. She\u2019s also taken up the mantle as caregiver to her youngest brother and sister, a role she has assumed with the utmost seriousness.<\/p>\n

\u201cEverything 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,\u201d Adams concludes.\u00a0\u201cChildren are and will always be our future. The most important thing we could do is to protect the future.\u201d<\/p>\n

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

Brackeen v. Haaland\u00a0could change the future of Indigenous rights. teenVogue BY SOPHIE HAYSSEN MARCH 8, 2023  At age nine, tragedy struck Autumn Adams\u2019 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\u00a0Yakama Nation, a federally recognized […]<\/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":[1032,983,974,1160],"class_list":["post-2589","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-faculty","tag-indian-child-welfare-act","tag-indian-law","tag-lewerenz","tag-professor-dan-lewerenz"],"acf":[],"yoast_head":"\nProfessor Lewerenz quoted as an expert: The Supreme Court and the Indian Child Welfare Act: What\u2019s at Stake in Brackeen Case - 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\/2023\/03\/professor-lewerenz-quoted-as-an-expert-the-supreme-court-and-the-indian-child-welfare-act-whats-at-stake-in-brackeen-case\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Professor Lewerenz quoted as an expert: The Supreme Court and the Indian Child Welfare Act: What\u2019s at Stake in Brackeen Case - North Dakota Law\" \/>\n<meta property=\"og:description\" content=\"Brackeen v. Haaland\u00a0could change the future of Indigenous rights. teenVogue BY SOPHIE HAYSSEN MARCH 8, 2023  At age nine, tragedy struck Autumn Adams\u2019 life. Her father passed away and her mother was deemed unfit to care for her, leaving Adams with an uncertain future. 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Haaland\u00a0could change the future of Indigenous rights. teenVogue BY SOPHIE HAYSSEN MARCH 8, 2023  At age nine, tragedy struck Autumn Adams\u2019 life. Her father passed away and her mother was deemed unfit to care for her, leaving Adams with an uncertain future. 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