WASHINGTON D.C — A case before the U.S. Supreme Court on Wednesday could impact children with tribal heritage across the country, including those in foster care in Oklahoma.
Wednesday, the justices heard arguments in Haaland V. Breckeen which disputes the legality of the Indian Child Welfare Act. The Breckeen family of Texas wants to adopt a child with Navajo heritage, and they have the mother’s blessing. However, the Navajo Nation argues that the adoption should now be allowed to proceed because the child is not going to a family with tribal blood, as ICWA requires.
The petitioners attorney’s opening arguments ranged from ICWA children are being denied some of the best options for their care, the law ignores emotional and loving bonds formed between a tribal child and their non-tribal foster families, and it leaves ICWA children with fewer resources for good care.
ICWA was passed more than 40 years ago after Congress undertook a four-year study of how Indian children were forced into boarding schools and often times then placed against their will with non-tribal families. ICWA is considered the fixing of one of the most egregious actions of the Federal government towards Indians children in American history.
The passage of ICWA was supposed to help rebuild the bonds between any children placed into a child welfare system with tribal heritage and their native culture.
Jennifer and Chad Brackeen, a white couple from Ft. Worth, Texas, argue the requirement to keep the child they’ve now bonded with is a violation of equal justice under the law because they are being subjected to special rules because of their race.
Justice Brett Kavanaugh repeatedly brought up that “Latino families don’t get to choose only Latino children. Black families don’t get to choose only black children. Asian families don’t get to choose only Asian children.”
Defendants are arguing Congress has the specific Constitutional right to establish these rules with tribal entities, and they have done so in order to properly protect the heritage of Indian children.
The tribes argue it is in the child’s best interest to protect that child’s culture and heritage and teach them about it in order to preserve their traditions.
Those arguing to keep ICWA as is argue it is up to Congress to make the changes being requested because Congress has the sole Constitutional right on how to deal with the tribes through the Indian Commerce Clause, but the Brackeen’s argue their child is a person not commerce.
Justices Sonia Sotomayor and Ketanji Brown Jackson offered the most push back to the petitioners even at times alluding to the fact that petitioners should not look to the court for change, but instead, they should seek changes to Congress.
Justices Kavanaugh and Amy Coney Barrett offered up the most questions about the process, and the procedures for establishing who can adopt a child with tribal heritage and when a tribe can step in.
Justices Roberts, Alito, Kagan, Thomas, and Gorsuch had questions at times, but they did not show any hostility or favorability to either side during questioning.
If ICWA is changed in any way, it will have ripple effects in Oklahoma as well where there are tribal children in the OKDHS system.
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