Supreme Court upholds tribal preference in Native adoption

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In a 7-2 decision, the U.S. Supreme Court has affirmed the authority of Congress to establish guidelines for Native American adoptions that give preferences to placing Native children with Native American families.

The ruling dismissed arguments claiming that such preferences for Native American families violated the constitutional principle of equal protection regardless of race or color. Instead, the justices agreed with the argument that tribes are political entities, and their children are their greatest resource for continued existence as a political entity.

Justices Clarence Thomas and Samuel Alito dissented from the majority opinion.

The case centered around the Indian Child Welfare Act (ICWA), signed by President Jimmy Carter in 1978. ICWA requires family courts, when making decisions about adoption, to score the child’s tribe or other Native American tribes higher than non-tribal Americans who wish to adopt a child.

The case out of a custody battle between a white foster couple from Texas and five tribes that were backed by the Interior Department, over the adoption of a Native American child.

The Texas couple, Jennifer and Chad Brackeen, fostered a boy who was born to a Navajo mother and a Cherokee father, neither of whom wanted the child. All tribal placements had fallen through when the boy came into the Brackeen home in 2016.

The boy’s mother then had another child, who entered foster care as well. The Brackeens filed for custody, so the children could live together, and the court gave them partial custody, and awarded partial custody with the child’s great aunt, who lives on a reservation, where the child would spend the summers, as dictated by the court.

The Brackeens argued that ICWA established racial discrimination against Native children and the non-Native families who offered to adopt them, and that adoption based on race is unconstitutional.

The tribes argued that the tribes are political entities rather than racial groups.

Thus, the high court’s decision has established adoption preferences based on political groups or affiliation, a decision surely to be contested in the future in other contexts.

Justice Barrett acknowledged the complexity of the issues raised by ICWA.

“The issues are complicated, but the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing,” she wrote.

34 COMMENTS

  1. Tough call. On the one hand, especially considering the slowly vanishing culture of most natives, if there is someone who wants the kid AND provide a stable home, good.

    Other hand: if the natives in question can’t provide a good home, and are not a direct relation, the kid should go to the people best suited to care for him/her.

    Again, sticky.

  2. Sounds good! And the wealthy Native Corporations and their tribal subdivisions can spend their own money raising these Native children.

  3. Questions: So if “tribes are political entities rather than racial groups” then they (the Native Americans) cannot claim discrimination based on race since they are a “political group” and not a “racial group”? Am I understanding this correctly? Also, can they (the tribes) be considered a sovereign nation if they are a political entity? Just asking.

    • They’re both. Native Americans are a distinct race (and have been identified as such for a long time) and Tribes are considered Sovereign Nations with inherent authority to govern themselves within the borders of the Unites States. They are considered “domestic dependent nations”. When the United States government, in any capacity, conducts Tribal Consultations with Tribes, they are considered government to government consultations for that same reason.

    • Native Americans are a racial group, but they belong to a “political group” ….their tribe.
      It has always been this way, as the Fed Gov always had treaties & agreements w/ different tribes since day one. As soon as we were a country we dealt w/ individual tribes & their Chiefs.
      Other Americans “tribe up” so to speak also. Ancient Order of Hibernians …. Sons of Italy …. etc … but only Tribes have an historical relationship w/ the Feds. Goes all the ways back to the Pilgrims & Jamestown actually.

        • No, it’s because Alaska Native tribes were asked to become corporations and “entities” because of money, because it’s the system that us Natives needed to conform to. That is why we are political is because the Alaska Native Corporations create revenue of our natural resources that is on our ancestral homelands, which goes to shareholders. Tribes are the governing body of a specific region that make decisions on the people (ie: Indian Child Welfare Act.), the land, social services, and economics. That is why we have politics like everyone else. it’s simple. if no one had money in this country, there is still the greedy, the poor, and people in between. Thanks for sharing though

    • That’s just mean, Stacey,

      Of course it’s true that these political groups didn’t even have the wheel or literacy or math or permanent abodes or an understanding of anything more than stone age lifestyles and technologies until very recently and it’s also true that slavery, incest, child molestation, infanticide, and eldercide were common practices among them but why must you be so judgmental?

        • You’re a goofy buffoon if the glaringly obvious facetiousness in my comment was lost on you, TMA.

          You’re also far past due for stepping away from your keyboard so you can go take a stroll and try to shake off some of that sad buffoonery you’ve saddled yourself with.

  4. A good decision IMO but everyone should read the very well written and cogent dissent by Justice Thomas.

  5. Some people are more equal than others got it.

    Just remember, you reap what you sow and this will be used once again to try and dismantle “systemic racism”. Where ever it may be and whatever it is, no one can seem to define it nor give coherent examples.

  6. The government has had a maliciously past taking of forcing Native children out of their homes and into boarding schools with the agenda to indoctrinate them into skills that will never benefit them in this country long term!! Children scooped out with lost connections, this is what happened to my great grandma, never again with this. Thank you ICWA

    • You’re clearly a victim, Jean, even though you can now evidently read, write, count to 11, make use of a toilet or at least a honey bucket, bathe, eat pilot bread, and utilize fire to some degree, with all thanks due to your great grandma having been introduced to the first world under circumstances you’re still butt-hurt over.

      So how much would you say you’re owed if you had to assign a dollar figure to having missed out on your stone age birthright, anyway, Jean?

        • I’m not about to apologize for implying that Western civilization is the best thing that ever could have happened for natives, TMA, and nor am I about to stoop to misty-eyed virtue signaling over how they were introduced to it.

          In case you’d missed it, there’s a corrosive racial, a cultural, and now a “political group” shakedown industry thriving in our midst and no amount of egalitarian weeping legitimizes it.

          You should go take a walk and get some air, Sonny. Shake off that doddering of yours.

  7. Having been personally impacted because this law I feel I have a right to speak on this subject. The native had no issue and supported me adopted. I did what I could to help one child so I hope it would be easy to adopt the child. On the adoption day the judge stopped and say he could not go on with it till I married a parent of the child……I married one of the bio parents as the judge required to do to adopt. Both bio parents have a relationship with the child. The mother did not have to abortion, she did not want to… but she could not raise the child nor could the father. The child is an adult grown. His tribe and culture has been in been a part since day one. I can not thank his tribe enough for the involvement of natives groups that step up to help him and myself to raise a proud, productive and educated native. Every child should know their heritage….I know little of mine but the child knows his all of his bio family. I just wish I did not have to marry to help the child. So, the child has 3 parents I never intended nor did I to separate him from his bio parents. Both bio parents had the child to encourage them to get sober and and cleaned up….they are each doing better and the child never did drugs or drink because he understood he might have a harder life as his bio parents faced. He explained to people that’s my bio mom that my bio dad…she’s the everyday mom.

    • Sorry to hear that you had such tribulations to make it right on the child. I hope that you are blessed in ways of your caring.

  8. On paper, I can understand the idea behind it. I guess. But what about the protocol of doing what is in the best interest of the individual child, in each and every case?

    • I think part of the benefit is not feeling completely like a fish out of water.

      It’s a poor analogy, but work with it. I spent a few years overseas. Most people were courteous, if not polite. But I never totally fit in because they weren’t “my people” nor I theirs.

      • What about children who are at least as much black or white (or any other race) as native? Why does their native ancestry get to take precedence over their other cultural pasts? The wording “eligible for enrollment” in a tribe means native over anything else, right?

  9. Wow, that’s a PC stretch. These kids’ chances of making something of their lives must bow to the “tribe.”

  10. As someone who is white and tried to adopt a 1/2 native child I have to say this whole process is crap. The state lets kids bounce around in foster care or from native family to native family who sees them for the $$$ they get and then when the kid has any issues like anger or developmental problems he gets kicked to the next family member to get some “foster care” money.

    Add to the mix the discrimination and tormenting 1/2 native kids get from the “full natives” and it gets worse. Many times I have heard “he doesn’t look native”. Also the state routinely places kids back in their abusive parents homes despite them not finishing court ordered drug treatment or anger management courses. 6 months later mom and dad are MIA and he’s back to couches all over the state.

    If you work for DFYS and you are reading this you are part of the problem. Like someone said flushing generations of kids down the toilet to bow to ANTHC, Native Corps and whoever else is a joke. They aren’t learning their culture unless their culture has become child rape, drug abuse and absent parenting

  11. Alaska is wealthy with billions of federal dollars for Tribes and the State.

    ICWA, Alaska Statutes and the Alaska Tribal Child Welfare Compact (Compact Agreement) point out Native children have three sources of protection, Federal, State and Tribal. All sources of government laws are for the protection and their best interest of our children. If working in collaboration between the three governments, why are families in Alaska today still being torn apart and children are suffering?

    Listen to the Presentation by Alaska’s Citizens Review Panel Report and Kim Guay from the Department of Family and Community Services OCS.
    https://www.akleg.gov/basis/Meeting/Detail?Meeting=HHSS%202023-02-14%2015:30:00

    Page 2 of the Compact Agreement, second WHEREAS. Alaska Constitution, Article VII, Section 5 requires that the Legislature…OCS is charged with enforcing these state laws and endeavors to keep all children safe and families together. https://dfcs.alaska.gov/ocs/Documents/icwa/TribalCompact.pdf What was the Strategic Plan 2016-2020?

    Is there enough money in the 2023 budget for the People First initiative programs? December 2021 Governor Dunleavy said, “Safety and prevention are my administration’s top priorities, ever since I took office.”

    If a Judge doesn’t believe the sworn undisputed testimony of the abuser that physical domestic violence did happen, and abuser(s) engaged in more than two acts of domestic violence, and some of the domestic violence was in front of the child(ren) or within hearing distance of the child(ren), then what good is the law or sworn undisputed testimony of the abuser? Did the Judge not believe the exhibits proving the abuser’s sworn undisputed testimony was true? Domestic violence isn’t just physical or is it? Did the Court minimize the statute or just failed to have a clear understanding of domestic violence incidents and the affects of trauma it has on a child?

    The Judge can Order a parenting plan of the parent(s). The parenting plan can also be the remedy and reunification for the family. NEVER call OCS but do call your Tribe. Example: Tlingit and Haida in Juneau has programs called Fatherhood is Scared and Motherhood is Scared that encompasses the whole family. I believe the Judge(s) need to do her/his part to NOT cause further adverse affects of childhood trauma to the child(ren), and keep children safe and families together.

    AS 25.24.150 (h) A parent has a history of perpetrating domestic violence under (g) of this section if the court finds that, during one incident of domestic violence, the parent caused serious physical injury or the court finds that the parent has engaged in more than one incident of domestic violence. The presumption may be overcome by a preponderance of the evidence that the perpetrating parent has successfully completed an intervention program for batterers, where reasonably available, that the parent does not engage in substance abuse, and that the best interests of the child require that parent’s participation as a custodial parent because the other parent is absent, suffers from a diagnosed mental illness that affects parenting abilities, or engages in substance abuse that affects parenting abilities, or because of other circumstances that affect the best interests of the child.

    Does OCS or a Judge take into consideration 22 AAC 25.090. Definitions.?
    In this chapter, (1) “approved program” means a program approved by the department under this chapter; (2) “child support services agency” means the agency established in AS 25.27; (3) “council” means the Alaska Council on Domestic Violence and Sexual Assault; (4) “department” means the Department of Corrections; (5) “domestic violence” has the meaning given in AS 18.66.990;

    What protection does an Alaskan have for a fair trial? You might be unique and afford an attorney but what about the Alaskans that cannot afford an attorney? https://courts.alaska.gov/media/docs/sc-2020-stmt.pdf

    What is needed in Alaska to protect our children and to ensure that every Alaskan gets a fair trial? Judicial reform. SCO 1993 that was signed into law December 1, 2022 violates the Alaska Constitution Article 1 Section 8. Every Alaskan needs Governor Dunleavy to use his power and authority, Alaska Constitution Article III Section 16 to ensure the faithful execution of the laws that shall protect all Alaskans and their right to a remedy to go before a grand jury to protect the public safety and well-being. When a Judge doesn’t follow the best interests of a child and the remedy of a parenting plan to ensure the children are kept with their parents, is wrong. When a Judge violates her/his oath of fairness to both plaintiff and defendant is wrong.

    Every Alaskans Senator and/or Representative needs to write or support legislation for judicial reform for the 2024 Legislative Session. Every Legislature needs to fully support judicial reform in Alaska.

  12. All the #ICWA @INTERIOR #SCOTUS @ANCSAregional @USIndianAffairs @IHSgov rulings cannot, repeat CANNOT change the facts;

    Most of us left the places where the laws have control of us… Other tribes cannot make choices for us… It’s what they call old law – it doesn’t work no matter how much you renew it! @WHO @UN this is a human rights crises! We need help.. @potus is engaging in forms of genocide that have kept us dying, leaving, crying for too long..

    Look up HHS-OS-2022-0012 docket RIN # 0945-AA17 ON regulations dot gov Non-discrimination in healthcare.

    They had an extensive public comment response of over 85 thousand comments and in the open meeting there was a heavy emphasis and inclusion of tribal groups and there are more of us in large cities.

    The Tribal HHS people said we need an insurance card because the systems in place are not being utilized by the majority of us, cannot meet the demands, needs and cannot grow to the capacity in it’s current form.

    I’m sure #SCOTUS did not review this docket, they cherry picked the answers they would get…

    I am an emancipated Alaska native and first off we were not all registered properly and we can’t remedy that because the organizations and processes are corrupted or not codified in law. Decisions should always be for the benefit of the child and the rates of violence are so high where they have control even assaults happening in their tribal compact healthcare facilities – we get treated like second class citizens and are used like slaves as much as the native leaders can get away with then they gaslight and say it’s not their jurisdiction… They can’t claim awards for governing healthcare without also taking responsibility when they fail us!

  13. Once again this should be about what is best for the child. Everyday Mom saw that and acted accordingly, while still maintaining cultural ties.

  14. Sounds like the Native mother missed the first child so she went out and had another baby. I meet too many Native women who want a baby yet still needs to learn how to raise a family. Whether she lost a baby through abortion, adoption, or foster care she always goes out and has another baby to make up for the one she lost. I’m glad the second baby has a great aunt who is trying to help this Single and Native mother out by keeping baby in the family. I wonder how hard the mother cried after losing the first and second babies that turned the great aunt’s heart to be more involved the second time around. I bet if this single mother didn’t have such major issues that got law enforcement and CPS involved, she’d be ignored and ushered to the back of the room with all the other single mothers or widows forgotten by the couple, the court employees, and all of us here. Everyone wants to adopt a baby, any baby. No one wants to watch over that lonely single mother struggling alone raising a child without a husband, her own dad, or her brother, or grandfather next to her, seeing this cruel sinful world don’t try to take advantage of her or that she doesn’t makes illogical whimsical emotional choices or helping her babysitting if she is in recovering needing space for her own healing cause you know the stress of a baby can increase the pressure on a fragile mother causing her to relapse. The church and definitely not the world they just don’t understand James 1: Religion that God our Father accepts as pure and faultless is this: to look after orphans and widows in their distress and to keep oneself from being polluted by the world. Anyway. I’m done.

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