Next Wednesday, the Supreme Court will hear oral arguments for the case Haaland v. Brackeen, which consolidates two other cases concerning the Indian Child Welfare Act (ICWA) of 1978. The primary issue Haaland v. Brackeen touches on, as The Nation reports, is whether the ICWA “institutionalizes discrimination against white families in the adoption of American Indian children.” It should seriously go without saying that anti-white discrimination—more commonly referred to as reverse racism—simply does not exist in our colonialist white supremacist society. For those who actually buy into some conspiracy against white people, hope y’all are proud of yourselves: Your views align with Stephen Miller.
The ICWA was introduced in 1977 by Democratic lawmakers and, once unanimously passed by Congress in 1978, was signed into law by President Jimmy Carter in less than a month. Its creation was meant to address the very real problem of Indian children being wrested from their families, their sense of safety ripped from them, and their cultures and identities erased. Prior to the ICWA, the U.S. separated children through downright abusive systemic mechanisms, including forced assimilation boarding schools and the foster system. Indian Country Today reveals that a handful of government-backed residential schools still exist to this day, and studies show that Indian children are disproportionately harmed and traumatized in foster care. Many of those issues—including adoptive placement—were mitigated by the ICWA.
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Thanks to the ICWA, “a[n adoption] preference shall be given, in the absence of good cause to the contrary, to a placement with a member of the child’s extended family; other members of the Indian child’s tribe; or other Indian families.” This adoption placement practice has been widely praised by both Indigenous tribes and child welfare experts and advocates. It’s considered the “gold standard”—so long as it’s enforced—in terms of adoptive placement practices and has the data to prove it—as well as the support. During the initial legal challenge to the case that ultimately became Haaland v. Brackeen, hundreds of tribes, dozens of Native organizations, and numerous groups filed briefs in support of upholding the ICWA.
Standing in opposition to the ICWA are three white couples who escalated their cases all the way to the highest court in the land. Jennifer Kay and Chad Everet Brackeen, a white Evangelical couple from Texas, naturally took to Fox News to plead their case, describing their experience fostering their now-adopted Diné son, referred to as A.L.M. Though they have a Supreme Court case concerning his custody, they also have a case open in Texas as they attempt to adopt A.L.M’s half-sister. They allege that enforcement of the ICWA amounts to discrimination against their family, ignoring the larger implications that could call into question other federal laws pertaining to Indigenous rights.
Heather Lynn and Frank Nicholas Libretti, a white couple from Nevada, were also successful in adopting a baby whose father is a member of the Ysleta del Sur Pueblo Tribe. It may have taken some time for the Librettis to reach an agreement with the tribe, but the family told the Washington Times that they “are now wary” of going through that same process again. Apparently, even their successful adoption proved so burdensome that the Librettis now feel the need to upend the ICWA completely.
Just one Indian child whose custody will factor into this Supreme Court case was successfully placed with a family member and tribal community. Robyn Bradshaw, a member of the White Earth Band of the Minnesota Chippewa Tribe has custody of her grandson after he spent years in the foster care system, and following legal challenges that took even longer. His custody is not in dispute, but the experience of Jason and Danielle Clifford, who temporarily fostered Bradshaw’s grandson and hoped to adopt him, somehow spurred them to file a similar legal challenge as the Brackeens and Librettis.
Were the Supreme Court to rule in favor of the Brackeens, the Librettis, and the Cliffords, more than the ICWA would be threatened, Cherokee Nation Deputy Attorney General Chrissi Ross Nimmo explained in an interview with the Cherokee Phoenix:
“Specifically, when it comes to the Indian Child Welfare Act, tribes determine citizenship. When the definition specifically turns on membership in a tribe, to convince the court that is race-based, it’s harmful specifically to ICWA because that’s the law that’s being challenged, but it’s harmful to all federal Indian law. The court has always held that Indian law is not race-based and therefore not subject to the constitutional scrutiny that racially based laws are. If the plaintiffs are successful here in convincing the court that whether or not a child is subject to ICWA turns on race and not their political status as a member or eligible member of a tribe, it then allows some of those same groups to question other areas of federal Indian law and quite frankly, the modern-day existence of Indian nations in our country.”