Native adoption: In high court case, a delicate web of intent and emotions
Our justice reporter is used to legal mazes. For this story, he had to explore different perceptions of fairness on child welfare, tribal sovereignty, and cultural preservation.
Who gets to decide what’s in a child’s best interest?
That’s the question at the heart of a case – Brackeen v. Haaland – that’s now before the Supreme Court.
The case is rooted in the federal government’s efforts in the late 1800s to place hundreds of Native children into private facilities with the partial goal of assimilating them into white culture.
“This case is very emotional,” the Monitor’s Henry Gass tells Samantha Laine Perfas. “It’s about children, about child welfare. It’s also about tribal sovereignty. You know, it’s about historical injustice and trauma.”
For Henry, an experienced justice writer, that underscored the need to approach coverage of the case with extreme care and an eye toward nuance. He had to look at competing child-placement preferences, competing views of what impact children’s cultural environments have on their well-being, competing views of what’s in their “best interests.” He had to gather these perspectives with care.
“So it’s all the more important to talk with every person involved in a nonjudgmental way,” he says. “They’re telling their truth, their lived experience. And it’s my duty to listen nonjudgmentally and transmit that as best as I can.”
Episode transcript
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Samantha Laine Perfas: Welcome to “Why We Wrote This.” I’m Samantha Laine Perfas.
In today’s episode, we’re going to talk about a complicated piece of legislation that has reached the Supreme Court. The Indian Child Welfare Act, also known as ICWA, was passed by Congress in 1978. The law seeks to keep Native children with Native families by prioritizing tribal members when it comes to adopting or fostering Native children. The law is being challenged in Brackeen v. Haaland, on a variety of grounds. I spoke to Henry Gass, who covers the U.S. Supreme Court and Native issues for the Monitor. He recently wrote a cover story for the Monitor Weekly that dives into the complexity – both legal and emotional – of this issue. Here’s our conversation.
Laine Perfas: Henry, ICWA is a pretty complicated piece of legislation. Would you mind sharing some of the context and history around why it was enacted in the first place?
Henry Gass: You can really trace it back to the late 1800s, when the federal government started to systematically put native children in large numbers into private boarding schools, with the partial goal of assimilating them into white culture. When those schools started to close down in the ’60s and ’70s, the social work agencies and states and the private adoption agencies started to take native children from their homes as well, because they considered them to be in unfit homes. Native children were taken in disproportionate numbers from their families. And so Congress began debating and discussing this problem, and eventually passed ICWA in 1978, with the goal of reducing the numbers of Native children who were being placed into foster care and adoption care.
Laine Perfas: ICWA is being challenged. And one big argument of the case is that the law is actually discriminatory.
Gass: At the time it was passed, about 1 in 4 Native children were in foster care or adoption, often adopted by non-Native families. The law was aimed at reducing that. And some of the ways it did so is through placement preferences that give priority to Native families. So family members get first priority, then members of the child’s tribe get second priority. And then Native family in the country is [the] third priority. So one of the arguments that the law is discriminatory is, first, that it discriminates against Native children by having these preferences, which these the plaintiffs here argue that discriminates against their equal protection rights.
Laine Perfas: And there’s one family, the Brackeen family, I believe, involved in the case. Can you share a bit about their experience and why they are plaintiffs?
Gass: The Brackeens, they live in north Texas. And they have two biological children. But around 2016, they say they heard a call from God to adopt. And so they started fostering this 10-month-old boy who’s known as A.L.M. in court documents. They foster him for over a year, and [then they decide] that they wanted to formally adopt him. As they start those adoption proceedings, the Navajo Nation intervenes through ICWA. They found a Navajo family in Colorado who were willing to adopt him. And because of those placement preferences that ICWA has, they would technically get preference over the Brackeens, even though they had been fostering him for most of his life at that point. So the Brackeens lost that initial adoption case, but they appealed it and won. And so they actually have adopted A.L.M. now. But through that case, they also made the case that the Supreme Court is hearing, which isn’t about a particular custody proceeding. It’s more about ICWA itself.
Laine Perfas: It’s interesting to think about their experience as a non-Native family caring for this child. However, if you look at the broad perspective of ICWA, there’s also this effort to protect the child’s sense of identity, culture, and belonging. How is the law intended to protect that?
Gass: So the law is born out of this history of quite intentional efforts to break up Native tribes and erode their culture by assimilation. There’s the argument that the Brackeens and other families make that young children who are in foster care with non-Native families for – you know in the case of A.L.M. it was over half of his life – and then to be taken away from that family is traumatic and impactful. But there’s another argument that in the long term interests of the child it’s beneficial for them to grow up in a community, in a culture that they’re rooted in and that they have family in, or that they’re in a community with people that look like them. And so they have a sense of personal identity, cultural identity. So you have those competing interests.
Laine Perfas: One of the women you interviewed in your story was Tania Blackburn. Can you talk about what happened in her life and how she experienced the effects of ICWA?
Gass: She grew up in Oklahoma. Both her parents are Native and she said earlier in her life, her mother really rooted her in their culture. They would go to powwows and dances. And she was very exposed to those traditions and ceremonies and practices. And then she wound up in foster care later in her childhood. She ultimately spent about 11 years in foster care, bouncing from foster home to foster home. She lived in about 10 ultimately. She would go to these foster homes that were putatively Native, with Native foster parents. And they either didn’t didn’t practice native traditions at all, or they practiced different traditions from different tribes. And she says it was just nothing like what she would do with her mother. She felt disconnected from her culture and her tribe and her tradition because of these placements in her childhood. And it’s never really been the same. Basically, she says, ICWA didn’t work for her.
Laine Perfas: Did you talk to anybody who was Native but was raised by a non-Native family and what their experience was like?
Gass: I spoke with Sandy White Hawk, who was adopted at 18 months old by a white family. And she was raised in Wisconsin. One of the first things she said when we started talking was, “you know, you grow up and you just don’t see yourself anywhere.” Small things like someone saying, “Oh, you laugh just like your aunt.” You never hear things like that. Her mother would talk about how she was from a reservation, but she didn’t know what a reservation was. Just a feeling of knowing you’re different, but not knowing why. And that just made her feel very alone. And then, she was 35, she went back to the Rosebud Reservation where she was from. And she said that was like she was breathing differently from how she had ever breathed before. Her spirit was healed, because she saw people who looked like her and also knew her or knew her family. That’s exactly the kind of feeling the kind of childhood and development that ICWA is trying to ensure and preserve.
Laine Perfas: It’s so complicated to think about how this law is trying to address all of these really valid concerns, and it is often emotional for all parties involved. I’m curious how you have approached this case as a reporter.
Gass: So this case is very emotional. It’s about children, about child welfare. It’s also about tribal sovereignty. You know, it’s about historical injustice and trauma. So it’s all the more important to talk with every person involved in a nonjudgmental way. They’re telling their truth, their lived experience. And it’s my duty to listen nonjudgmentally and transmit that as best as I can.
Laine Perfas: In this legal battle, do you see any areas of common ground or things that give you hope that the best interest of the child could remain at the center of the conversation?
Gass: ICWA requires lots of communication and coordination between tribes, between state child welfare agencies, between adoption agencies – lots of different parties. And that doesn’t always happen. One thing ICWA has been able to achieve is build up those partnerships and create this infrastructure around making sure that ICWA is followed. And it has developed relationships between tribes and the localities near them and the states that they reside in. In that way it has maybe helped improve the system in some aspects.
I think one of the things that makes this case so challenging is that everyone has the best interests of the children at heart. They just maybe disagree on what those best interests are. I mean, the case itself is very complicated. We talked about the arguments being made around the law being discriminatory. There are other questions around it infringing on states’ rights. The question of how much power Congress should have over Indian affairs. Which means there are lots of ways that the court could ultimately decide the case. They had the oral argument on November 9th. It lasted for over three hours and oral arguments typically are about an hour long. It’s very hard to predict how they’re going to decide. And it’s unlikely, I’d say, to be your typical ideological divide on the court.
Laine Perfas: Well, thank you so much, Henry.
Gass: Oh, my pleasure.
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Laine Perfas: Thanks for listening. To find links to Henry’s reporting, a transcript of this episode, and our show notes, visit csmonitor.com/whywewrotethis. This episode was hosted by me, Samantha Laine Perfas, and co-produced with Jingnan Peng, edited by Clay Collins. Our sound engineers were Noel Flatt and Alyssa Britton, with original music by Noel Flatt. Produced by The Christian Science Monitor, copyright 2022.
