US has fraught history with Native adoption. Enter the Supreme Court.

On a cool October morning, the sun shines down on a clearing in the piney woods of southeast Texas. Here, Tania Blackburn, after spending her childhood bouncing from foster home to foster home, is starting to build a life for herself.

The sun shone on Aurene Martin too when, driving to Capitol Hill, she found out she had a chance to adopt another son.

And sunlight pierced the hospital window the day Robyn Bradshaw became a grandmother. 

In the world of child welfare, sunny days can be hard to find – something these three Native American women know all too well.

Finding homes for children whose parents are unable or unwilling to raise them is a heart-wrenching process, even when it goes smoothly. An overworked and under-resourced system only adds to the emotional strain, as courts, caseworkers, and families grapple with the question at the core of every child welfare case: What is the best interest of the child?

In cases concerning Native American children, that question is especially complicated.

For over 40 years, many of those cases have been subject to the Indian Child Welfare Act (ICWA). Born from a tragic history, the law established minimum standards for removing an “Indian child” from their families and placing them in other homes.

For decades the convention in America’s child welfare system had been that vulnerable children were best served by removing them from “unfit” families and placing them in “closed” adoptions, with no contact between the child and birth parents. ICWA required states do almost the exact opposite: prioritize keeping children with their parents when possible, and if not, placing them with relatives or members of their tribe.

The law has faced many legal challenges, but none quite like the one the U.S. Supreme Court will hear on Wednesday. The argument will likely continue the justices’ term-long discussion of the role of race in American society and law. The decision – expected next summer – is difficult to predict, but its consequences could extend far beyond ICWA. The case pits loving families against each other. It casts a federal and state power struggle against a backdrop of centuries of injustice. And it puts to the highest court in the land one of the toughest questions a judge can hear: With a vulnerable child in need of a family, what is in their best interests?

“Everyone wants children to be taken care of, and to be in safe places,” says Kevin Washburn, former assistant secretary of Indian Affairs at the Department of Interior and a citizen of the Chickasaw Nation.

“There was a time when Native children were often adopted by very good, well-intentioned non-Indian families, and yet for the children in those families they often felt lost,” he adds.

What ICWA has provided, he continues, is a recognition “that courts should strive, when possible, to place children [somewhere] that’s culturally appropriate, so that they don’t have that sense of loss and lack of belonging.”

“He had already lost a family”

Eight years ago, Jennifer and Chad Brackeen heard God calling on them to become adoptive parents.

But when they thought they were about to answer that call – adopting a boy, identified in court documents as A.L.M., who they had been fostering for a year – the Navajo Nation intervened. 

The boy’s birth parents had terminated their parental rights. A.L.M. is eligible, through his mother, to be enrolled in the tribe, so his case fell under ICWA. The tribe found a Navajo family in Colorado willing to adopt him, and a judge denied the Brackeens’ petition. Soon after, they got a text message saying A.L.M. would be taken in two days.

It’s unclear why it took so long for a tribe to intervene, but the Brackeens appealed. After the Navajo family withdrew, they won. They are seeking to adopt A.L.M.’s half sister, with the support of the young girl’s mother, but the Navajo Nation wants the girl placed with her great-aunt or an unrelated Navajo couple. The couple didn’t respond to interview requests, but Ms. Brackeen described the adoption process on her personal blog. 

“He already had strong attachment to us and to our family,” she wrote in a January 2018 post. “He had already lost a family in his short life, and we didn’t believe it was in his best interest to lose another.”

They officially adopted A.L.M. in 2018, “but the passion we have to amend this law remains,” she continued. “It is destroying the hearts of children across the country every day.”

They have a particular grievance with ICWA’s “placement preferences.” Those provisions require that an “Indian child” – a child enrolled, or eligible to be enrolled, in a federally recognized tribe – be placed with a member of their extended family, other members of their tribe, or other Native families.

The justices are not being asked to resolve any particular custody dispute in Brackeen v. Haaland, but instead evaluate those provisions as well as other facets of ICWA. The Brackeens and other plaintiffs are arguing that ICWA, particularly through its placement preferences, unconstitutionally discriminates against non-Native families.

There are many other questions, several of which stem from what is perhaps ICWA’s biggest strength and, here, its greatest weakness: the fact it applies not on tribal land, but in state courts. Does Congress have the power to enact a law like that? Does it violate the 10th Amendment by allowing the federal government to intrude in state-only matters, in this case the welfare of children in states?

With Native Americans increasingly choosing to live off reservations – about 87% do, according to the 2020 census – this issue was somewhat inevitable. The federal government has unilateral authority to work with federally recognized tribes, and states have broad authority over child protection and welfare.

With ICWA, Congress did “impose federal law on state court processes” says Mr. Washburn, who is now dean of the University of Iowa College of Law. But it did so “for a legitimate purpose, for good reason.” 

“Literally stealing Indian children”

Congress passed ICWA in 1978 after years of research, investigations, and public hearings. That process itself was the result of more than a century of Native children being taken from their families.

Starting in the 19th century, hundreds of thousands of Native children were taken from their families and placed in boarding schools, with the partial goal of assimilating them into white culture, according to the National Native American Boarding School Healing Coalition. As boarding schools wound down in the 1960s, state child welfare services and federally funded private adoption programs began removing Native children in large numbers from their homes.

By the early 1970s, about 1 in every 4 Native children were in foster or adoptive care or boarding schools, according to congressional testimony – often because social workers viewed impoverished Native homes as neglectful homes. 

The federal government “has chosen to allow these agencies to strike at the heart of Indian communities by literally stealing Indian children,” said James Abourezk, a senator from South Dakota, at a hearing in 1974.

The result was a trailblazing piece of child welfare policy that prioritized keeping children with parents if possible and if not, with relatives or other tribal members.

“It makes people have to go through a fair process,” says David Simmons, government affairs director at the National Indian Child Welfare Association.

That does mean that ICWA cases can take longer to resolve, leaving children in temporary placements – and forming attachments – longer than anyone would like. But Mr. Simmons thinks it’s worth it.

“The child welfare system is broken in this country, and has been for a long time,” he adds. ICWA “pushes those systems to work more effectively, and also consider not just the immediate needs of children but their long-term needs too.”

“What really ought to matter ... are children”

Tania Blackburn knows all about the broken child welfare system.

As a child in Oklahoma, she lived in nine or 10 putatively Native foster homes over the course of 11 years. ICWA failed her, she says.

Before she entered foster care, her birth mother grounded her in Delaware and Creek culture. They would go to powwows and ceremonial dances, make regalia, and visit family members.

“Once I was put into the foster care system it was completely different, or it was nonexistent,” she says.

“I have missed out on all those seasons and dancing, and growing up with my cousins and kinfolk,” she adds. “I could return, and they wouldn’t know who I was.”

She lives more than 400 miles away now, in a trailer on a dirt road outside a small town in southeast Texas. She’s building a house in a clearing with her husband, and she’s never been happier. Her daughters are here, and her brother, who was in foster care with her, will be moving here soon. They’ve bought three baby goats they want to raise for milk.

She still dances and goes to powwows. She beads as well – a recent work sits next to a Bible on her living room table. But it’s not the same. “Even with ICWA,” she says, she feels she lost something. After years of struggle, including substance misuse, she thinks she’s here not because of ICWA, but in spite of it.

“What really ought to matter, more than legacy or tribes, are children,” she says. “We’ve got to find good people and ... not to limit their options [for] love and support.”

“America can live on without tribes, but America cannot live on with broken people; it cannot survive without good, stable families,” she adds.

It’s a common argument among ICWA critics, including many, like Ms. Blackburn, with personal experiences. The law, they argue, allows tribes to systematically harm and traumatize Native children by removing them from – or depriving them of – loving non-Native homes.

“Many tribes are just entirely cavalier with the child’s psychological sense of permanency,” says Mark Fiddler, an adoption and family law attorney in Minneapolis.

He was once so enamored with ICWA that he formed a special practice dedicated to it. But the more cases he worked on, he says, the more his views changed. Now, he thinks ICWA has become the crude tool of family separation it was originally intended to prevent. Today, he represents the Brackeens and other families in the lower courts.

“The paramount value [for tribes] is cultural preservation,” he says. “I get that, but at what cost?”

Mr. Fiddler says he gets “that” because he is Native himself, a member of the Turtle Mountain Band of Chippewa Indians. Though he grew up in Minneapolis, he was raised in his Native culture, visiting the reservation and learning about its history and traditions.

He’s a pariah there now, he’s said, because of his opposition to ICWA.

What he wants is more Native foster homes, and more Native adoptive parents. What he wants is for tribes and governments to tackle systemic problems that feed the child welfare system, like substance misuse and joblessness. Instead, he believes ICWA has set itself up to fail: requiring solutions where there aren’t the necessary resources.

“That’s what nobody really wants to talk about,” he says.

“All these kids crash into the system, they bond and attach, and then we just mess them up again,” he adds. “It makes ICWA kind of unmatched in its brutality.”

“It was so healing”

People like Sandy White Hawk wished ICWA had become law earlier.

In the 1950s, a white missionary couple adopted her at 18 months. They raised her in a small Wisconsin town. She knew she was Native – her mother would tell her, in “an exceptionally negative way” – but she didn’t know what it meant. She just knew she was different from everyone around her.

“Initially you may think, so what? I’m being cared for,” she adds. But “there’s an emotional isolation that develops.”

“All the things that nobody ever says [to you], things like, ‘Oh, you laugh just like your Aunt Gladys,’ ” she continues, “it just adds up over time to be a really deep grief and loss, with an emotional isolation.”

At age 35, Ms. White Hawk, a Sicangu Lakota, returned to her birthplace: the Rosebud Reservation. She remembers feeling her “lungs open up.”

“It felt like I was breathing in a way I hadn’t breathed before,” she says. “The land itself seemed to wake my spirit up.”

Reuniting with her family, she finally had the feeling of looking at people and seeing herself.

“Just seeing them and having that affirmed began to give me right away a sense of belonging,” she says. “It was so healing.”

Unlike then, today family and community placements are now the priority in any child welfare proceeding, and closed adoptions are exceedingly rare. And supporters of ICWA say the “revolutionary” law deserves credit for helping bring that about.

“ICWA really was a path-marking statute in that [family placement] regard,” says Dan Lewerenz, a contract attorney with the Native American Rights Fund and a member of the Iowa tribe of Kansas-Nebraska. “Today almost every state recognizes that that’s a best practice.”

Data shows that American Indian and Alaska Native children are still disproportionately represented in foster care, but experts and advocates say the situation is night and day compared to the 1960s and ’70s. Native children age out of foster care less often than other children and they are placed with relatives more often than other children, according to data analyzed by Casey Family Programs.

“Have we had trouble in the courts? Yes. Has it led to a reduction? Yes,” says Abby Abinanti, chief judge of the Yurok Tribal Court in Northern California.

“We feel it has been successful in that regard – maybe not as much as we want, but it’s a start,” she adds.

As a state court judge – the first Native woman to reach that position in California – Judge Abinanti heard many ICWA cases. They’re all hard, she says, even when they go smoothly.

And they often do go smoothly. Between 2015 and 2021, there were placement preference appeals in just 13 of 254 ICWA cases, according to data compiled by Kate Fort, director of the Indian Law Clinic at Michigan State University.

When the law isn’t followed, trauma and even more heartbreak can emerge.

P.S., as she’s known in court records, had a long, complicated birth. Robyn Bradshaw, her grandmother, was in the room for it all. She was in the Hennepin County, Minnesota, hospital as P.S. recovered. And she was there for the first three years of her granddaughter’s life, helping raise her in her home.

But when P.S.’s parents were arrested, county officials told Ms. Bradshaw that an old felony conviction disqualified her from becoming her foster parent. They never told her she had a right to clear her record. P.S. was put in emergency custody and, later, into a foster placement with the Clifford family.

Six years of litigation followed, as the Cliffords fought to adopt the girl they fostered for almost two years. Ms. Bradshaw, a member of the White Earth Band of Ojibwe, went to every court hearing.

“I remember sitting in court and feeling like I was burning up inside,” she said in a statement. “I knew P.S. belongs with me. ... I felt like I was dying from a broken heart.”

In 2020, she adopted P.S. The Cliffords are co-plaintiffs in the Brackeen case.

Ms. Bradshaw has filed an amicus brief opposing them. This all could have been avoided, she writes. 

Had Hennepin County officials followed ICWA and child welfare practices, “P.S. would have remained with Ms. Bradshaw, her caregiver since birth,” the brief states, quoting the Minnesota court’s opinion in her custody case. “Instead, [P.S.] has been traumatized by our system due to numerous failed placements. ... And the Cliffords have lost a child whom they love and consider their own.”

Should American law be “colorblind”?

The case before the Supreme Court is a complicated one: When the Fifth Circuit Court of Appeals heard the case, its final decision stretched for 325 pages with six separate opinions.

The Supreme Court’s three liberal justices are likely to support ICWA. Justice Neil Gorsuch, one of the court’s most conservative members, has the most experience with tribal law and a record of ruling in tribes’ favor.

Justices Samuel Alito and Clarence Thomas, meanwhile, appeared very skeptical in the high court’s last ICWA case, Adoptive Couple v. Baby Girl, in 2013. Two others, Chief Justice John Roberts and Justice Amy Coney Barrett, are adoptive parents themselves. 

Beyond the views of the justices, the volume of questions means there are all manner of ways the court could potentially rule.

The placement preference provisions are perhaps the most compelling to the average person, but the justices could resolve the case through other questions. The conflict ICWA raises between federal and state governments on child welfare proceedings is one possibility. The scope of the Indian commerce clause – a provision of the Constitution that gives Congress sole authority to work with federally recognized tribes – could be another.

The hottest question in the case, however, ties into issues the justices have been vigorously debating already this term – specifically, race and the idea that American law should be “colorblind.”

In one case this term, Alabama is arguing that being required to draw multiple majority-Black voting districts is unconstitutional because it requires the state to perform “race-based sorting.” In another case, students at two universities are arguing that affirmative action programs violate the equal protection rights of certain races.

The Brackeen case makes similar arguments.

ICWA “discriminates against Indian children on the basis of their ancestry ... and it deprives them of the ‘best interests of the child’ test that applies to every other kind of child in state court proceedings around the country,” said Matthew McGill, a lawyer at Gibson, Dunn & Crutcher who is representing the Brackeens, on a call with reporters last week.

It also discriminates against prospective parents of those children, “by putting non-Indian parents at the back of the line, and putting in front of them by law literally every Indian family from every single one of 573 Indian tribes,” he added.

There is an important difference here compared to, say, affirmative action, however. In making this argument, Mr. McGill and his colleagues are arguing that being “Indian” for ICWA purposes is a racial classification. The Supreme Court has never said that in a majority opinion – though a few justices made the argument in the Adoptive Couple case – instead maintaining, for centuries, that being “Indian” is a political classification rooted in tribes’ status as sovereign nations recognized by Congress.

“If they prevail on that argument, the effect on Indian law would be incalculable,” says Mr. Lewerenz, a University of North Dakota School of Law professor.

Practically every statute that provides programs, services, and benefits to Native people “has tribal membership, membership in a federally recognized tribe, as the touchstone,” he adds. “They are basically trying to burn down all of Indian law with this argument.”

While this is the same court that made several historic rulings last term, Mr. Washburn, the former assistant secretary of Indian Affairs, would be surprised if the court transformed tribal law in that way.

It’s rare that Indian law cases are politically or ideologically polarizing, and the case provides a few paths toward a more restrained decision. The court could give state courts more leeway to not follow ICWA, or it could strike down just the preference for “other Indian families.”

“There are possible ways for this case to come out where ICWA loses but all of Indian law doesn’t get lost,” says Mr. Washburn.

Tribes are nonetheless making preparations for a post-ICWA world.

This would resemble something like the diffuse abortion access landscape that has emerged since the court overturned Roe v. Wade last summer. Tribes would lean on partnerships and shared resources with state and local agencies and organizations, as well as build out their own child welfare infrastructure and ensure that ICWA-style state laws are enforced.

Regardless of how the high court rules, tribes have a number of ways of ensuring their children are cared for in state systems, said Ms. Fort, director of the Indian Law Clinic at Michigan State University, on a call with reporters in October.

“One of the greatest success stories of ICWA is the partnerships that have developed between tribes and states, and I think those partnerships will continue even if ICWA falls,” she added. 

“The important part is that they’re connected”

For almost her entire life, Aurene Martin has seen ICWA work.

Not only has she adopted two sons through ICWA, she worked on ICWA cases in the mid-’90s as an attorney for the Oneida tribe in Wisconsin.

When Ms. Martin was growing up, her grandmother on the Menominee reservation, about an hour’s drive from Green Bay, would foster Native children. Some were girls around her age and they would all play together. 

“It was just like they were kids in our family,” she says. But “they always wanted to go back to their parents. They loved their parents.”

Today, Ms. Martin is focused, not on the case, but on raising her two adopted sons in their home in the Washington, D.C., suburbs.

She’s listening to her younger son’s whistles echo through the house. She’s trying to encourage her older son to pursue art without nagging. It’s all the challenges and rewards of parenting, she says, with a heavy dose of added complexity.

“You struggle with impostor syndrome, maybe,” Ms. Martin says.

For adopted children “at some level, you always have that sense of loss at your very core, and there’s nothing I can do to make up for that,” she adds.

But Ms. Martin is doing everything she can. The boys know they’re adopted, and, as they’re entering the moody teenage years (13 and 14), “they’re shockingly not curious about the details,” she laughs.

They’re from different tribes, Oneida and Menominee, but Ms. Martin has roots in both communities. They make frequent trips to the reservations, including four times in the past year.

“The important part is that they’re connected to their family, that they’re connected to the community.”

Editor’s note: This story has been edited to clarify a quote from Ms. Bradshaw’s amicus brief.