Whose Children are These?

How much should the federal government regulate child custody proceedings involving American Indian children? Or should Congress legislate to protect tribal communities’ authority to resolve such matters on their own?

Depending on what happens to a federal appeals court’s ruling, tribes may lose a key statutory tool that keeps “Indian children” within their communities. The law applies to children under the age of eighteen who are either registered members of an “Indian tribe” themselves, or children eligible for tribal membership whose biological parents are registered tribal members.

The appeals court case centers on the family of Chad and Jennifer Brackeen, who provided foster care for a child with Navajo and Cherokee heritage and sought to adopt him. After a court battle that could have pulled the child back into the Navajo community, the Brackeens succeeded in adopting the child. But due to the child’s status as an “Indian child,” federal law provides that the adoption remains “open to collateral attack” for two years after completion.

Facing the possible challenge of their adoption, the Brackeens went to court to challenge that law as unconstitutional to ensure that their adopted child could not be removed from their custody. Other non-Indian families who have tried to adopt Indian children, along with the states of Texas, Louisiana, and Indiana, have joined forces to argue that the Indian Child Welfare Act (ICWA) is unconstitutional.

As the case proceeds through the federal court system, though, tribes are fighting to uphold ICWA, which they believe “protects children” and “helps them remain connected to their families, cultures, and communities.”

In the United States, American Indian and Alaskan Native children disproportionately enter the foster care system “at a rate 2.6 times greater than their proportion in the general population.” In South Dakota, 13.8 percent of all children are American Indian or Alaskan Native, but they make up 57 percent of the state’s foster care population. Even though only 1.7 percent of Minnesotan children are American Indian or Alaskan Native, these children comprise 27.2 percent of children in foster care—making them 16 times more likely to enter foster care than members of Minnesota’s general population.

States traditionally control family law in the United States, but the federal government maintains a “general trust relationship” with federally recognized Indian tribes. As states play a limited role in tribal governance and are not always sensitive to tribal needs, tribes have balked at states’ apparent eagerness to remove children from tribal communities.

The U.S. Supreme Court considers federally recognized tribes to be “domestic dependent nations,” assigning them a semi-sovereign status that falls more under the federal government’s foreign affairs power rather than state authority. Because American Indians are “members of quasi-sovereign tribal entities” and not merely part of a “discrete racial group,” they retain unique federal protections compared to other racial minorities in the United States.

Today, American Indian children receive protections in child custody proceedings due to ICWA.

ICWA aims to protect “the best interests of Indian children and to promote the stability and security of Indian tribes and families.” The law pursues these goals by establishing minimum standards for removal of Indian children from their families, placement of Indian children in foster or adoptive homes, and assistance to tribes to run child and family service programs.

ICWA also provides tribal courts exclusive jurisdiction over actions to remove Indian children living on a reservation from their families. Tribes can transfer state placement proceedings when a parent, legal guardian, or the tribe itself petitions the court, and tribes can intervene in state court proceedings relating to the placement of an Indian child. The law then requires that all courts within the United States provide “full faith and credit” for child custody proceedings completed by tribal courts.

The law also mandates that an Indian child’s guardian and tribe must be notified by certified mail about state placement proceedings, and it guarantees the child’s parent the right to legal representation if they cannot afford counsel. ICWA then establishes high evidentiary standards to remove Indian children from their families. A court must find “clear and convincing evidence” that “the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child” and that “beyond a reasonable doubt” the child will suffer such harm if the court leaves the current parental rights intact.

For adoptive placements of an Indian child under state law, ICWA requires the court to give preference to placements with a member of the child’s extended family, other members of the child’s tribe, and other Indian families. Foster care placements must similarly preference keeping children within their family or tribe.

Despite repeated court challenges to ICWA that predate the Brackeen case, the law remains on the books.

In 1989, the Supreme Court left ICWA intact in a case where a baby’s Indian parents specifically sought to escape the law’s effect by traveling 200 miles outside the reservation to give birth. Still, the Supreme Court maintained that the tribal court had exclusive jurisdiction over the case, emphasizing the law’s role in protecting tribal children from injustices suffered in state court systems.

Notwithstanding the Court’s past willingness to uphold ICWA, it has sometimes weakened the law’s protections for tribal communities. In Adoptive Couple v. Baby Girl, the Court ruled that, despite an Indian biological father and his tribe wanting to keep the subject Baby Girl in their community, the child’s adoption did not break up an “Indian family.” The Court justified this ruling by emphasizing that the girl’s father previously gave up his parental rights, and that he never had legal or physical custody of the child.

Writing for the majority, Justice Alito expressed concern that applying ICWA’s protections for Indian parents’ rights in that case would allow Baby Girl’s biological father to use an “ICWA trump card” to overcome the mother’s choices and child’s best interest.

In the case at hand, now known as Brackeen v. Bernhardt, the trial court ruled that ICWA contained an unconstitutional racial classification. The U.S. Court of Appeals for the Fifth Circuit reversed, finding ICWA was constitutional because it concerns members of a political, rather than racial class. The Fifth Circuit, however, called for rehearing by all the judges on the court, and heard arguments in January 2020.

Depending on how that court rules, thousands of Indian children in Texas, Louisiana, and Mississippi could lose the framework that shields them from state governments that “have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”