Updated at 8:25 p.m. ET on February 22, 2019.
When Chad and Jennifer Brackeen realized that God was calling on them to help children in their area, they first tried to ignore it. They already had two young children of their own, and foster care isn’t exactly known for being easy. But then they did some research and learned of the great need for foster parents in Dallas. They signed up.
The second foster child who was placed in their care was a nine-month-old boy whom the Texas Department of Family and Protective Services had suddenly taken from his home in an emergency situation. The Brackeens weren’t told what had happened, only that he’d be with them for just a couple of months. Months turned into more than a year, during which time the boy’s parents terminated their parental rights and said that they’d support Chad and Jennifer when they filed a petition to adopt the boy, known only as A.L.M. in court documents. Adopting A.L.M. wasn’t their plan, but again God called, and Chad and Jennifer knew they had to answer. According to the complaint, the boy’s court-appointed lawyer supported their petition, and with the backing of A.L.M.’s birth parents, the Brackeens expected the process to be relatively easy: A loving family wanted to adopt a boy from a troubled home. But a state family court denied their petition. The reason, according to the court, was that A.L.M. was Native American. This, the Brackeens learned, changed everything.
As soon as A.L.M. arrived in their home, Chad and Jennifer had unwittingly become party to a decades-old law called the Indian Child Welfare Act (ICWA, pronounced “ick-wah”). The law, passed in 1978, put in place standards that states must follow when an American Indian kid needs a new home. ICWA promotes keeping these kids within Native American communities whenever possible. That means non-Native families who want to adopt an American Indian child must prove not only that they are the most suitable caregivers, but also that placing the child in a non-Native home is worth straying from ICWA’s guidelines. ICWA is an attempt to correct for American policies, dating back two centuries, that sought to assimilate American Indian children into white culture by taking them off reservations and placing them in boarding schools or with white families. The Brackeens knew none of this—not the brutal history, or that this law existed, or that Native kids were treated differently as a result if they ended up in foster care. All they had been told on their first chaotic day with A.L.M. was that he was an American Indian child.
The Brackeens decided to fight the court’s ruling, which would send A.L.M. to an unrelated Navajo family (his biological mother is a member of the Navajo Nation) in New Mexico whom he had met once. They printed out the eight-page law and pored over it. They heard, on a foster-care podcast, about a lawyer who specialized in ICWA. After connecting with him, they soon had a powerful legal team comprising family attorneys and high-profile lawyers from a national firm. While Chad and Jennifer made their case in state court for adopting A.L.M., their lawyers sued the U.S. Department of the Interior’s Bureau of Indian Affairs.
The federal case seeking to invalidate the law is the most consequential challenge ICWA has ever faced. In October, a federal judge in Texas (the same judge who, in December, struck down the Affordable Care Act) sided with the Brackeens and found the law unconstitutional. ICWA’s defenders—the federal government, joined by four Indian tribes and supported by several Native American advocacy groups and child-welfare organizations—appealed the ruling to the Fifth Circuit Court of Appeals in New Orleans, which is scheduled to hear oral arguments for the case in March. One of the Brackeens’ lawyers thinks that the case could reach the Supreme Court. The lawsuit brings together an eclectic group of Republican state attorneys general, libertarian advocacy organizations, and a prominent family-law attorney who says his opposition to ICWA has made him a “pariah” in his own Chippewa Tribe. A case challenging the constitutionality of ICWA on equal protection grounds has never before been heard in a federal circuit court, so the judges must make sense of a difficult reality: Across the country, Native American kids need a home and a loving family, and for some, the only way to get those things might mean cutting them off from their ancestors’ culture.
As a kid, Mark Fiddler, the Chippewa attorney who wants to see ICWA overturned, made regular trips to his tribe’s reservation in North Dakota. There, Fiddler told me, he developed “an interest in the whole idea of how a person figures out … [their] identity … You’ve got these interesting and in some ways conflicting worldviews, with Indian culture and dominant Anglo culture.” Fiddler expressed to me, many times, that he cares about keeping that American Indian culture alive. But he doesn’t think ICWA is the way to do it. He says the law is usually applied in such a way that Indian families are automatically assumed to be best for Indian kids, but that’s not the reality.
Fiddler learned about ICWA as a law student. He thought it was a “cool idea—trying to hang on to Indian culture and trying to create law that gave parents some right to have their kids kept in the culture whenever possible,” he said. After he graduated, Fiddler worked first as a public defender before moving into family law, where he specializes in ICWA but also works on other adoption and foster-care cases. Soon, he started to identify problems with ICWA. “It was and is a good idea,” he told me, “but the devil is in the details.” He began to ask the same questions that federal judges in New Orleans will now have to answer: “Can you apply a law that says Indian families should be given priority?” And, he continued, “can you apply that in a way that's consistent with the idea that the child's interests come first?” No, he concluded, you couldn’t.
Determining what’s in a child’s “best interests” is the guiding principle for judges and lawyers throughout family law. The Brackeens, now joined in the case by two other white couples and the attorneys general of Texas, Indiana, and Louisiana, are arguing that when ICWA is applied, the preservation of Native culture, not the best interest of the child, is the primary concern. Sometimes, that means doing something other than what is best for the child. This, they say, is an unfair distinction, made on the basis of race. All other children get what is best for them; Native kids get what is best for Native tribes, they contend. This is the crux of their argument: The preference given to Native American foster parents is unfair, both to non-Native foster parents and to Native kids.
These are complicated questions, both legally and emotionally. At the heart of the Brackeens’ argument is the assertion that ICWA treats American Indians as a racial group, and not a political one. This is radical: Every law that involves American Indian communities, reservations, and tribes is rooted in the notion that tribes are sovereign political entities, similar to other countries (American Indians are citizens of their tribes as well as citizens of the United States). Tribes fear that invalidating ICWA on a racial basis has the potential to create a domino effect, bringing down the rest of American Indian law with it.
Amy Pellman, a family-law judge in Los Angeles and a law professor at the University of Southern California, was for a long time the sole judge working on ICWA cases in L.A. She was not an advocate for or against the law; her job was to interpret it. (She no longer does ICWA work.) Confusion would arise, she told me, when non-Indian foster parents were asked to give up the Indian child in their care to an adoption placement chosen—sometimes very late in the process—by the child’s tribe. That placement often was a distant relative or even a Native family with no relation to the child. “From the foster parents’ perspective, it’s very hard to understand that it would be in the children’s best interest to be placed with another person after they’ve been with them for a significant period of time,” Pellman explained. “The ICWA advocates see it completely one way, and the non-ICWA advocates see it the other.” She said that “some tweaks in the law” might fix its challenges.
But that’s not what the Texas judge found in October. He said, rather, that major parts of the law were unconstitutional. Much of his decision rested on technicalities of administrative law. But part of his ruling was unprecedented: It found that ICWA operates on a racial classification, that the law distinguishes between Native Americans and others based on race, not political sovereignty. Supreme Court precedent requires laws to have an especially good reason for differentiating based on race. In this case, the judge found, the law did not surpass that higher level of scrutiny. The law’s backers did not even offer a reason why ICWA should meet a higher standard, because—and here’s the legal dispute—they argue that Native Americans are a political group, not a racial one.
The decision left tribal leaders, Native activists, and child-welfare professionals fearful that a signature legislative achievement of the Native American community might be lost. The law’s passage marked the end of a centuries-long effort—spearheaded, at different times, by the federal government, child-welfare agencies, and missionary churches—to integrate Native American children into mainstream American culture.
The policies to do so changed through the years. In the most infamous phase, many Native children were taken from their parents, without consent, and sent to state-sponsored orphanages or boarding schools to “kill the Indian in [them].” This meant cutting their hair, teaching them Christianity, and forcing them to speak English. “All semblance of their culture and understandings about the world and their religious practices—they were forcibly and emotionally and mentally ripped from them in boarding schools,” says Shannon Keller O’Loughlin, executive director of the Association on American Indian Affairs (AAIA), an advocacy group. The boarding-schools era started in the mid-19th century and lasted well into the 20th.
In the 1950s and ’60s, through a federal program called the Indian Adoption Project, hundreds of kids were taken from reservations in western states—usually with parents’ consent, though the consent was not always fully informed—and placed for adoption, primarily with white parents in states on the East Coast. The goal here was not assimilation for its own sake, even if that was the outcome, Ellen Herman, a historian of adoption at the University of Oregon, told me. The project’s architects “viewed Native children as being ignored and segregated and left out of the opportunities provided by child-welfare services,” Herman said, so social workers thought they were doing the right thing by offering adoption to poor Native parents—but the result, still, was Native kids disconnected from their culture.
This wasn’t something that just happened on the margins, to a few kids in the worst situations. Research published by the AAIA in the 1960s found that up to a third of all Native kids had been placed in foster care, adoptive homes, or other institutions—and 90 percent of those kids went to white families. The findings shocked even Native American communities, who were forced to reckon with the pervasive, damaging attitude among white welfare workers that “Indian families aren't good enough to take care of our own children for some reason,” as O’Loughlin described it. ICWA was passed with the intention of countering this prejudice toward Native parents. National politicians began to note the disastrous effects of these policies as a burgeoning American Indian movement developed political power in the 1960s and ’70s. Eleven years after the federal Indian Adoption Project formally ended, Congress passed ICWA with bipartisan support.
Instrumental to the law’s functioning has been the backing of the child-welfare community. In January, a group of 31 national child-welfare organizations filed a brief supporting the federal government and the four tribes in the Brackeen case, arguing that ICWA “has served as a model for the child welfare policies that are best practices generally.” Striking down the law, these groups argue, would have “devastating real-world effects.” They’re puzzled that it faces such opposition, given its near-unanimous support from child-welfare experts.
ICWA is one of the only parts of the foster-care system that actually works, argues Kathryn Fort, a Michigan State law professor and one of the nation’s foremost ICWA experts. Fort is one of the lawyers representing the tribes in the Brackeen case. “ICWA is trying to get better outcomes for a small group of children in a system that has just horrific outcomes,” she told me. White social workers often approach her at conferences to complain about the law in a way that plays on antiquated stereotypes about Native people. “I've had many social workers ask me about why we let ‘these people’ play their Indian card at the last minute,” she said. Fort is white; they assume, she said, that she’ll be on their side.
While lawyers and advocates dispute ICWA cases in court, where proceedings in the heavily backlogged foster-care system can drag on for months or years, American Indian children spend that time growing attached to a family who might not remain their family when the case is decided. It’s a challenge that’s built into the system. Social workers have to do “concurrent planning”—arranging to reunite a kid with his biological parents while also working to find a placement for the child if he cannot return home, explains Gregory Manning, who worked for nearly 20 years as a clinical psychologist in the Orange County, California, health department. A shortage of foster parents (Native or otherwise), combined with a rising number of children in out-of-home care, only makes the problem worse.
That concurrent planning might be necessary, but it’s not easy for the child. Say a Native child is placed with a non-Native foster family, and the family decides that they want to adopt the child. If their request is denied, they might contest the court’s decision, further dragging out the legal process. The child stays with the foster family during those proceedings and spends more time apart from the Native American family she might end up with. At the end of the dispute, if the child is placed with a Native American family, she has to leave the foster family she’s grown attached to. Had the foster family not contested the court’s ruling, that separation would’ve been much easier—but sometimes the foster family wins. The Brackeens won. It’s impossible to know the outcome, and the uncertainty hurts the child most of all. “You can’t let this stuff go on indefinitely, because people get hurt. Children get hurt,” says Adam Pertman, a child-welfare expert and former journalist who reported on foster care.
Chrissi Ross Nimmo, the deputy attorney general for the Cherokee Nation, one of the tribes involved in the Brackeens’ case, told me in an email that some people “believe that if a child has developed a bond with a current placement, that child should never be moved (absent a safety risk).” But, she added, “tribes consider the child’s entire life and future,” including the importance of being raised with a close connection to the child’s biological family and culture.
“In a perfect world,” Nimmo explained, a child’s tribe is notified as soon as he is removed from his home. Then the tribe “can assist the state in finding an appropriate family placement.” This is one of ICWA’s main challenges: It cannot work if states do not comply. And with a foster-care system that’s underfunded and understaffed, with countless other county, state, and federal guidelines to follow, compliance is not always the norm. “The cases we see in the news usually pit the tribe against the foster parent, but these cases are outliers,” Nimmo said. More often, she added, “the tribe works hand in hand with the state agencies, family members, and placement providers to offer additional services and hopefully help achieve family reunification, which is the goal.”
Many American Indians feel a responsibility to advocate for ICWA because they understand what happened to their communities before it existed. “I don’t think [there’s] an Indian around [who] doesn’t have family or friends who had kids taken unjustifiably,” Keith Harper, one of the attorneys representing the tribes in the Brackeen case, told me. Harper, a member of the Cherokee Nation who served as President Barack Obama’s ambassador to the United Nations Human Rights Council, in Geneva, lives in Chevy Chase, Maryland. “I think about that in our neighborhood. Imagine if one out of every three kids was unjustifiably taken from their families?”
This history is what makes so many people in Native American communities leery of white people who want to adopt, no matter how good their intentions. And it’s why they’re committed to ICWA, even if it is flawed. For Harper, the attacks on ICWA are direct attacks on his family: His youngest daughter is an “ICWA kid,” born in California to members of his wife’s tribe. Had she stayed in California and gone through the regular foster-care system, she would not have ended up with a Native family, Harper suspects. “She would’ve been raised without any sense of her culture,” Harper said. He maintains that “one of the pernicious lies about ICWA” is the trope that the law puts “tribal interests above the child’s interests.” He pointed to the life that he and his wife have provided for their adopted daughter: a private-school education, almost three years in Geneva, French fluency, and an attachment to her tribal culture.
What Harper and the other attorneys on the case most vehemently disagree with is the other side’s view that American Indians are a racial group and not a political one. The Goldwater Institute, an Arizona-based libertarian think tank, has been arguing for several years that ICWA is bad for American Indian children because it doesn’t actually consider what’s best for them. Instead, the institute says, it can harm American Indian kids because it gives preference to American Indian families, picked by tribes, who might not necessarily be the best guardian for a child—and that’s unfair to the child.
“Our view is, the Constitution guarantees to all American citizens and all persons the right to equal treatment before the law,” says Timothy Sandefur, vice president for litigation at the Goldwater Institute. Goldwater isn’t a party to the Brackeens’ case, but it filed an amicus brief supporting the Brackeens and hopes the law will be overturned. (Senator Barry Goldwater, who voted for ICWA in 1978, helped launch the institute.) The institute first took an interest in ICWA a few years ago, when its former president signed up to be a foster parent. “She was so struck by the different rules that applied” to Native kids in the foster-care system, Sandefur explained to me, that she asked the organization’s litigation team to look at the issue.
Goldwater Institute focuses on “defending freedom,” and most of its work involves mainstream conservative priorities: lowering taxes, protecting free speech, getting rid of Obamacare. But it has quietly been laying the ideological groundwork for a possible reversal of ICWA with articles in conservative publications and legal journals. “If you look at some of the things that Goldwater and others are saying,” Harper told me, they’re making an argument that “really is fundamentally challenging the entire precept that Indians are treated differently because of a political rather than a racial distinction.”
ICWA doesn’t neatly fit into the standard right-left political framework. In December, a bipartisan group of senators and representatives approved a resolution doubling down on their commitment to the law. Mark Fiddler, the family-law attorney who works on ICWA and is Indian himself, resents the charge that he must be a conservative because he’s allied with the Goldwater Institute. He supported Bernie Sanders in the 2016 Democratic primaries, and he thinks that his stance on ICWA fits squarely with his progressive worldview. “I think the liberals have a narrative of what’s happened to Indian people and tribes and genocide and historical trauma and treaty violations, and that’s all true,” Fiddler said. But, he continued, “you don’t say just because of that narrative that in this particular case with this child, the Indian always wins.” It’s a cause, Fiddler argued, about “the rights of the powerless and the marginalized children—the most vulnerable … I think that happens to be a liberal cause. It’s also a conservative cause.”
When I asked the Brackeens whether they planned to teach A.L.M. about Navajo culture, they offered an emphatic yes. “Keep cultures together. I think that's ideal,” Chad said. “But once you get beyond that, you risk disruption that is detrimental and irreversible to children.”
They have A.L.M.’s birth mother on their side, and they hope she’ll be involved in her son’s life. And even though they grew to oppose ICWA, they also learned about the history underpinning the law—the boarding schools, the Christian missionary families, the bias against Native Americans that still exists. “All things aren’t equal,” Pertman, the adoption expert, told me. “The number of Indians has been incredibly diminished … Do we want to get rid of all Indians?” Of course not, he said. But that history overshadows everything, even if the Brackeens’ intentions are pure.
As the Brackeens’ case played out in court, A.L.M. remained in their care. The adoption was finalized in early 2018, two months after they filed the federal suit and a year and a half after A.L.M. first came to their home. “It was really hard on Chad and me to think that he was about to leave, but we didn't actually share that with the children,” Jennifer said. “They'd just be like, Why is Mommy crying all the time?”
Ultimately, things worked out. Chad and Jennifer’s adoption petition was approved. But they aren’t about to give up their work against ICWA. They’re petitioning to adopt another child: A.L.M.’s baby sister.
The Brackeens told me they weren’t notified when she first entered the foster-care system, even though child-welfare experts and federal guidelines say that keeping siblings together is generally the best option. Chad and Jennifer said the girl’s tribe, the Navajo Nation, intervened to place her with an unrelated Native American family in another state, away from her brother. (A spokesperson for the Navajo Nation Office of the President and Vice President did not respond to multiple requests for comment.) But recently the Navajo Nation located the girl’s great-aunt, who lives on a reservation in Arizona and would be willing to adopt her. The Brackeens still think they’re the right choice, so the baby can be with her brother.
Their adoption petition will turn on more than just what’s best for the child—it will turn on what becomes of long-standing tenets of American Indian law, tenets that are now uncertain.
A.L.M.’s sister’s case, like his own, pits two core values against each other: the importance of preserving Native American culture and the desire for a child's immediate needs to trump all other concerns. Whatever the outcome, something will be lost.