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State statutes could protect families if Indian Child Welfare Act is overturned

A Texas challenge to the federal Indian Child Welfare Act might not be entirely successful in at least nine states where state laws impose similar restrictions on the adoption of Indigenous children by non-Native parents, some experts say.

The Supreme Court has been asked to hear a challenge from a Texas couple who called the law unconstitutional after it delayed their adoption of a Navajo child they had been fostering. The law was meant to stop the removal of Native children from their culture, and the Texas couple was initially turned down after tribal leaders found a home on the Navajo Nation where the child could go.

The court has not yet said whether it will take the case, but Chrissi Nimmo, deputy attorney general for the Cherokee Nation, said state statutes can further protect Indigenous children and their families if the court ultimately finds the act unconstitutional. Arizona is not one of the nine states with comprehensive laws that might blunt any weakening of the federal act.

“I think you will see tribes starting to put more effort … to strengthen state ICWA laws as a way to protect Indian kids, their families and tribes,” Nimmo said.

But Jennifer and Chad Brackeen argue that the act, passed in 1978 to prevent Native children from being unfairly removed from their parents and adopted by non-Native parents, is unconstitutional because it uses race-based criteria in violation of their 14th Amendment rights to equal protection. Texas, Indiana and Louisiana are supporting the Fort Worth, Texas, couple in their lawsuit.

The couple sought adoption in 2017 of a Navajo child they’d been fostering but were blocked by Indian Child Welfare Act provisions when tribal leaders found a home for the child in the Navajo Nation.

With help from corporate lawyers and the Texas attorney general, the couple fought the Navajo Nation and won custody of the child. In October 2018, the Brackeens filed a federal lawsuit on grounds of racial discrimination, arguing that the act made it harder for them to adopt the child.

Cherokee Nation of Oklahoma, Oneida Nation of Wisconsin, Morongo Band of Mission Indians of California and Quinault Indian Nation of Washington oppose the effort to overturn the Indian Child Welfare Act.

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Nimmo said in the unlikely scenario the law is overturned because it’s race-based, that would impact state Indian child welfare laws because states can’t treat people differently based on race.

But if the court allows its anti-commandeering argument to stand, it wouldn’t prevent states from passing or altering their own Indian child welfare statutes, regardless of the fate of the federal statute.

“The Indian Child Welfare Act is one of the most important acts of external sovereignty a tribe can engage in,” said Claudette Grinnell-Davis, a University of Oklahoma professor.

Grinnell-Davis, with help from a grant from the Robert Wood Foundation, is studying how Nebraska’s Indian child welfare statute has improved Nebraska’s child welfare system as it relates to Indigenous children. Grinnell-Davis said the research not only is timely because of the Brackeen case, it will be the largest-scale attempt ever to evaluate Indian Child Welfare Act.

An Oklahoma Department of Human Services report released in September 2020 said 7,774 children were in foster care, with 322 in tribal custody. Of the 7,452 in state custody, 2,567 were Indigenous.

Oklahoma human services data indicated more than 80% of Oklahoma’s foster and adoptive homes are not Indigenous, but the likelihood of having an Indigenous child placement was high.

Nine states have their own versions of the federal Indian Child Welfare Act. Oregon passed legislation in July 2020; Oklahoma’s was adopted in 2017. Washington state, Iowa, Minnesota, Michigan, Nebraska, Wisconsin and Louisiana also have state statutes.

The Indian Child Welfare Act is known as the “gold standard” in federal child welfare policy, said David Simmons, the National Indian Child Welfare Association’s director of government affairs and advocacy.

The nine states’ statutes address everything the federal statute does, but those are just the comprehensive state statutes, Simmons said.

Texas, he noted, is among the 30 or so states with language in their existing child welfare systems mentioning or supporting Indian child welfare provisions.

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“States and tribal nations are realizing there is much more benefit and power in working together on these cases, than there is to not,” Simmons said. “I continue to see it as a sign of increased support and adoption of ICWA’s principles in state child welfare law.”

Kathryn Fort, representing the four tribes intervening in the case, said she expects more tribes signing onto amicus briefs to support the Indian Child Welfare Act, joining the hundreds who have already done so this fall.

In season 2 of her podcast, “This Land,” Cherokee journalist Rebecca Nagle investigated underlying custody cases and major players in the effort to overturn the act.

“Non-relatives were chosen over relatives in half of the cases,” Nagle said. “In one case, non-relatives were chosen over another Navajo family.”

Nagle said an “odd cast of characters” is fighting the Indian Child Welfare Act in the Supreme Court. The Brackeens sought legal help from corporate law firms who typically represent such corporations as Walmart, Chevron and Amazon, rather than family law, she said.

“These cases are really kind of a Trojan horse for other money interests,” Nagle said.

One issue with the Indian Child Welfare Act is the lack of consequences for state agencies that aren’t compliant.

“Who won custody in a lot of these cases really came down to who had more money and legal resources,” Nagle said.

Connie Johnson, a former Oklahoma state senator from Holdenville, said she’ll be livid if the act is overturned. Johnson is a Black woman of Choctaw descent who is running for governor of Oklahoma.

“I think it’s pretty arrogant for these families seeking to repeal ICWA to disregard indigenous culture and the importance of children growing up in their culture,” Johnson said.

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Jennifer and Chad Brackeen, shown speaking with Texas Attorney General Ken Paxton, are challenging the Indian Child Welfare Act, claiming it violates their rights under the 14th Amendment.

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