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Adoption row in US Supreme Court threatens Indian Child Welfare Act

18 November 2022


Protesters argue for the protection of the Indian Child Welfare Act outside the Supreme Court in Washington, DC, last week

Protesters argue for the protection of the Indian Child Welfare Act outside the Supreme Court in Washington, DC, last week

AN ADOPTION case before the Supreme Court of the United States could pose a threat to legislation that has sought to ensure that Native American children remain within their communities when they are forced to leave their birth parents.

The ramifications of the Brackeen v. Haaland case could mean the end of tribal sovereignty, some legal experts say.

The family at the heart of the case, Jennifer and Chad Brackeen, are a white couple from Texas who want to adopt a four-year-old girl, whose birth mother is Navajo. The couple have already adopted the girl’s brother, after lengthy litigation which they won.

The Indian Child Welfare Act (see panel, below) dictates that children in foster care who are members of tribes, or eligible for membership, should be placed with extended family, another tribal member, or another Native American family. In this case, the girl’s great-aunt, who lives in the Navajo Nation in Arizona, wants to adopt the girl.

In 2019, a Texas judge ruled that the families should share custody, with the child spending summers with her great-aunt in the Navajo Nation.

The couple, together with the state of Texas and other white foster parents, are arguing that the Act discriminates against them on the basis of race.

Tribes are disputing that there is discrimination, arguing that tribes are political entities. The Act does not apply to any child with Native American ancestry, but only one who is a member of a tribe or is eligible for membership.

This was upheld in another case by the Supreme Court in 1974, when it ruled that the Act was not discriminatory but rather “reasonably designed to further the cause of Indian self-government”.

Elizabeth Reese, an assistant professor of law at Stanford University and a scholar of tribal and federal Indian law, told CNN: “To say that this is all just about race or racism really undermines the separate sovereignty that these governments have, and their separate identities as tribal nations.”

If the Supreme Court ruled that tribes were racial groups rather than political entities, and that the law was therefore unconstitutional, the legal basis for tribal sovereignty would be at risk, she said.

“If that is the case for the Indian Child Welfare Act, then there is little to say that that’s not the case for tons of other statutes across the federal code,” she said. “For example, [those codes] create health care for Indian persons under the Indian Health Service. Is that an impermissible racial discrimination? What about the holding of lands by the federal government in trust for specific Indian tribes?”

There are disproportionally high numbers of Native American children in the care system in the United States.

The plaintiffs are also arguing that the Act goes against the best interests of children, by making it harder for them to find a permanent home.

The case was heard in the Supreme Court on 9 November, and a ruling is not expected until next spring.


Indian Child Welfare Act

THE United States Supreme Court case has shone a spotlight on the decades old US federal law, the Indian Child Welfare Act, which was introduced to halt the high numbers of Native American children being separated from their families.

The Act, enacted in 1978, gave tribal nations a say in the child welfare cases of children who were members of a federally recognised tribe, or eligible for membership to a tribe. It also prescribes that, when a Native American child is available for adoption, priority should be given to the child’s extended family, then other members of the child’s tribe, then other Native families.

The Act sought to halt the drive to assimilate Native American children that was prevalent in the 19th and early 20th centuries: first through the residential schools where children were sent, many of them run by churches. When the schools closed, the Indian Adoption project placed hundreds of children in the homes of white families. As many as one third of Native American children are believed to have been forced from their homes into homes of white Americans, as a result of the project.

The 1978 Act ruled that it was in the best interests of the children to remain connected to their communities. Congress said at the time that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children”.

Tribal nations see the Brackeen v. Haaland case as the attempted overthrow of the Indian Child Welfare Act, and an attack on their sovereignty and future existence.

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