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What is the Indian Child Welfare Act? Here's what's at stake as SCOTUS hears Haaland v. Brackeen [1]

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Date: 2022-11-03

Thanks to the ICWA, “a[n adoption] preference shall be given, in the absence of good cause to the contrary, to a placement with a member of the child’s extended family; other members of the Indian child’s tribe; or other Indian families.” This adoption placement practice has been widely praised by both Indigenous tribes and child welfare experts and advocates. It’s considered the “gold standard”—so long as it’s enforced—in terms of adoptive placement practices and has the data to prove it—as well as the support. During the initial legal challenge to the case that ultimately became Haaland v. Brackeen, hundreds of tribes, dozens of Native organizations, and numerous groups filed briefs in support of upholding the ICWA.

Standing in opposition to the ICWA are three white couples who escalated their cases all the way to the highest court in the land. Jennifer Kay and Chad Everet Brackeen, a white Evangelical couple from Texas, naturally took to Fox News to plead their case, describing their experience fostering their now-adopted Diné son, referred to as A.L.M. Though they have a Supreme Court case concerning his custody, they also have a case open in Texas as they attempt to adopt A.L.M’s half-sister. They allege that enforcement of the ICWA amounts to discrimination against their family, ignoring the larger implications that could call into question other federal laws pertaining to Indigenous rights.

Heather Lynn and Frank Nicholas Libretti, a white couple from Nevada, were also successful in adopting a baby whose father is a member of the Ysleta del Sur Pueblo Tribe. It may have taken some time for the Librettis to reach an agreement with the tribe, but the family told the Washington Times that they “are now wary” of going through that same process again. Apparently, even their successful adoption proved so burdensome that the Librettis now feel the need to upend the ICWA completely.

Just one Indian child whose custody will factor into this Supreme Court case was successfully placed with a family member and tribal community. Robyn Bradshaw, a member of the White Earth Band of the Minnesota Chippewa Tribe has custody of her grandson after he spent years in the foster care system, and following legal challenges that took even longer. His custody is not in dispute, but the experience of Jason and Danielle Clifford, who temporarily fostered Bradshaw’s grandson and hoped to adopt him, somehow spurred them to file a similar legal challenge as the Brackeens and Librettis.

Were the Supreme Court to rule in favor of the Brackeens, the Librettis, and the Cliffords, more than the ICWA would be threatened, Cherokee Nation Deputy Attorney General Chrissi Ross Nimmo explained in an interview with the Cherokee Phoenix:

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[1] Url: https://www.dailykos.com/stories/2022/11/3/2133189/-What-is-the-Indian-Child-Welfare-Act-Here-s-what-s-at-stake-as-SCOTUS-hears-Haaland-v-Brackeen

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