Race issue in Supreme Court adoption case troubles tribes

The question is whether a federal law that seeks to place adopted Native American children in Native American homes is constitutional. The case could turn on whether the judges consider the tribes to be racial groups or sovereign nations.

The little girl who will soon be known to the nine judges of the United States Supreme Court as Y.R.J. is now 4 years old. For much of her short life, she lived with Dr. Jennifer Brackeen and Chad Brackeen, a suburban Texas couple who are fighting with the Navajo Nation to adopt her. The biological mother of Y.R.J. is Navajo. The Brackeens are white.

On Wednesday, the Supreme Court will hear arguments in their case, which could affect not just the baby girl's adoption but those of thousands of Native American children in foster care. Depending on the scope of the judges' decision, the outcome of the case, Brackeen v. Haaland, could also trigger the dismantling of other federal protections that have long been extended to tribes.

That's because the case, which is primarily between Brackeens Texas to the U.S. Department of the Interior and five tribes, could focus on whether the Supreme Court finds tribes to be racial rather than political classifications — a prospect the tribes find deeply threatening.

"It would jeopardize every treaty, every property and political right and every power that Indian nations possess today," said Robert Miller, professor of federal Indian science. law at Arizona State University, tribal court judge and registered citizen of the Eastern Shawnee Tribe. ", not a tribal government," he said. “Your borders, your policing laws, everything on the reserve would be in question. I am not hyperbolic. I'm afraid of this case."

Specifically, the Brackeens want the Supreme Court to strike down a federal law, the Indian Child Welfare Act of 1978. The law says that when a child eligible for tribal affiliation ends up in state foster care, the child should, if possible, be adopted by a tribal family.

Lawyers for the Brackeens argue the law discriminates against Native American children as well as non-Native families who wish to adopt them because it determines placements based on race. But the tribes say that 'they are political entities, not racial groups.

Legal scholars have said that beyond resolving the Solomonic struggle over the fate of a child , a ruling against the tribes could, in the long term, undermine their centuries-old legal status as sovereign nations with a relat single ion with the US government. For 250 years, this relationship has been the basis of treaties and regulations for tribal health and education provision; criminal jurisdiction; and hunting, fishing, oil, mineral, and gaming rights.

In the short term, if the Supreme Court determines that tribal citizenship is based on race, the Child Welfare Act, often known as the I.C.W.A., will be struck down for violating the equal rights to protection of Indigenous children and non-Indigenous adoptive families.

Matthew McGill, a lawyer for the Brackeens, said dire predictions about the ramifications of overturning the law were overblown. The law is unique in the Indian federal canon, he said, as it deals with Indian child welfare cases arising outside of tribal lands. (On reservations, these cases are overseen by tribal social workers and tribal courts.)

"I think the trickle down effects are not what was marketed by opponents of families,” McGill said.