Who gets to decide what is in a child’s best interest?
That is the core question of a case – Brackeen v. Haaland – who is now before the Supreme Court.
The case has its roots in federal government efforts in the late 1800s to place hundreds of Aboriginal children in private institutions, in part with the goal of assimilating them into white culture.
“This case is very emotional,” says Monitor’s Henry Gass to Samantha Laine Perfas. “It’s about children, about children’s well-being. It is also about tribal sovereignty. You know, it’s about historical injustice and trauma.”
For Henry, a veteran justice writer, this underscored the need to approach reporting of the case with extreme care and an eye for nuance. He had to consider competing preferences for child placement, competing views of how children’s cultural environment affects their well-being, competing views of what is in their “best interest.” He had to carefully collect these perspectives.
“It is all the more important to speak to everyone involved without prejudice,” he says. “They speak their truth, their lived experience. And it is my duty to listen with an open mind and convey that as best I can.”
Samantha Laine Perfas: Welcome to Why We Wrote That. I’m Samantha Laine Perfas.
In today’s episode, we’re going to talk about a complicated law that has reached the Supreme Court. The Indian Child Welfare Act, also known as ICWA, was passed by Congress in 1978. The law attempts to keep Native children in Native families by giving priority to tribal members when it comes to adopting or fostering Native children. The law is used in Brackeen v. Haaland challenged for various reasons. I spoke to Henry Gass, who reports on the US Supreme Court and Native Affairs for The Monitor. He recently wrote a cover story for Monitor Weekly that explores the complexities – both legal and emotional – of this issue. Here’s our conversation.
Laine Perfas: Henry, ICWA is quite a complicated law. Would you mind sharing some of the context and history of why it was enacted in the first place?
Heinrich Gass: You can actually trace it back to the late 1800s, when the federal government began systematically putting large numbers of Native children in private boarding schools, in part with the goal of assimilating them into white culture. As these schools began to close in the ’60s and ’70s, the social work agencies and states, as well as private adoption agencies, began taking local children from their homes because they deemed them unsuitable. Native children were taken from their families in disproportionate numbers. And so Congress began debating and discussing this issue and eventually passed ICWA in 1978 with the goal of reducing the number of Aboriginal children placed in foster care and adoptive families.
Laine Perfas: ICWA is challenged. And a big argument of the case is that the law is actually discriminatory.
Gas: At the time of adoption, approximately 1 in 4 local children were in foster care or adoption, often adopted by non-local families. The law aimed to reduce this. One of the ways this was done was through placement preferences that give priority to native families. So family members have first priority, then members of the child’s tribe get second priority. And then the local family is in the country [the] third priority. First, one of the arguments that the law is discriminatory is that it discriminates against native children by having these preferences, which plaintiffs here argue that their equal protective rights are discriminated against.
Laine Perfas: And there’s one family, the Brackeen family, I believe, that’s involved. Can you share something about your experience and why you are a plaintiff?
Gas: The Brackeens, they live in north Texas. And they have two biological children. But around 2016, they said they heard a call from God to adopt. And so they began nurturing this 10-month-old boy known in court documents as ALM. They’ve been promoting him for over a year, and [then they decide] that they wanted to formally adopt him. As they initiate these adoption processes, the Navajo Nation intervenes through ICWA. They found a Navajo family in Colorado willing to adopt him. And because of those placement preferences that ICWA has, they would technically prefer the Brackeens, despite having promoted him for most of his life at that point. So the Brackeens lost that first adoption case, but they appealed and won. And so they’ve actually taken over ALM now. But through this case, they also brought forward the case the Supreme Court is hearing, which is not about a specific custody case. It’s more about ICWA itself.
Laine Perfas: It is interesting to reflect on her experiences as a non-native family caring for this child. However, if you look at ICWA’s broad perspective, there are also these efforts to protect the child’s sense of identity, culture and belonging. How is the law supposed to protect that?
Gas: So the law grew out of this history of rather deliberate efforts to break up native tribes and subvert their culture through assimilation. There is an argument that the Brackeens and other families ensure that young children who are in foster care are placed with non-native families – you know, in ALM’s case it was over half his life – and then taken away from that family become traumatic and incisive. But there’s another argument that it’s in the child’s long-term interest to grow up in a community, in a culture where they’re rooted and have a family, or in a community of people who look like you. And so they have a sense of personal identity, cultural identity. So you have these 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?
Gas: She grew up in Oklahoma. Both of her parents are native and she said earlier in her life that her mother really rooted her in her culture. They would go to powwows and dances. And she was very exposed to those traditions and ceremonies and practices. And then later in her childhood she ended up in a foster family. She ended up spending about 11 years in foster care, hopping from foster family to foster family. She eventually lived to about 10. She would go to these foster homes with Aboriginal foster parents who were believed to be indigenous. And either they didn’t practice any native traditions at all, or they practiced other traditions from different tribes. And she says it just wasn’t what she would do with her mother. She felt disconnected from her culture, tribe and tradition because of these placements during her childhood. And it was never really the same. Basically, she says, ICWA didn’t work for her.
Laine Perfas: Have you spoken to someone who was native but raised in a non-native family and what their experiences were like?
Gas: I spoke to Sandy White Hawk, who was adopted by a white family when she was 18 months old. And she grew up in Wisconsin. One of the first things she said when we started talking was, “You know, you’re going to grow up and you’ll never see yourself again.” Little things like someone saying, “Oh, you laugh just like your aunt.” You never hear anything like that. Her mother talked about how she came 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 made her feel very alone. And then, when she was 35, she went back to the rosebud reservation where she came from. And she said it was like she was breathing differently than ever. Her spirit was healed because she saw people who looked like her and also knew her or knew her family. This is exactly the feeling, the kind of childhood and development that ICWA seeks to ensure and preserve.
Laine Perfas: It’s so complicated to think about how this law is trying to address all of these genuinely legitimate concerns, and it’s often emotional for everyone involved. I’m curious how you approached this case as a reporter.
Gas: So this case is very emotional. It’s about children, about children’s well-being. It is also about tribal sovereignty. You know, it’s about historical injustice and trauma. It is all the more important to talk to everyone involved in an impartial manner. They tell their truth, their lived experience. And it’s my duty to listen with an open mind and convey that as best I can.
Laine Perfas: Do you see common ground in this litigation or things that give you hope that the best interests of the child could remain the focus of the conversation?
Gas: ICWA requires a lot of communication and coordination between tribes, between state child protection agencies, between adoption agencies – many different parties. And that doesn’t always happen. One thing ICWA has been able to do is build these partnerships and create this infrastructure to ensure ICWA compliance. And it has developed relationships between tribes and the places near them and the states in which they live. In this way it may have 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. You may not agree on what those best interests are. I mean, the case itself is very complicated. We talked about the arguments surrounding the law being discriminatory. There are other questions about this that violate the rights of states. The question of how much power Congress should have over Indian affairs. That means there are many ways the court could ultimately decide the case. They had the hearing on November 9th. It took over three hours and oral hearings usually last around an hour. It is very difficult to predict how they will decide. And it’s unlikely, I would say, that it’s your typical ideological divide on the pitch.
Laine Perfas: Well, thank you Henry.
Gas: I’m glad.
Laine Perfas: Thanks for listening. For links to Henry’s coverage, 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.