Battle Pits Native American Tribes Against White Couple Over Adoption of Native Child in Case With Potential Affirmative Action Implications

The historic marker at the gravesite of Native Americans that attended the Carlisle Indian Industrial School in Pennsylvania, where many Native American children were placed after being removed from their families and communities often as a result of discriminatory policies.
Photo: iStock

In a case that may have implications for race-based affirmative action and other similar remedies offered to address centuries of racial discrimination in this nation, Native American tribes have banded together against a white couple over who should have custody of a Native American child.

Jennifer and Chad Brackeen of Texas are challenging federal law that requires Native American children to be adopted by a Native American family if a suitable one is available, the New York Times reports. 

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The Indian Child Welfare Act came about in 1978 to remedy decades of discriminatory policies under which Native American children were taken from their parents and communities and shipped off to missionary schools or placed with white adoptive families, often stripping the children of their indigenous identities and culture.

In May 2017, after fostering a now 3-year-old Native American boy for about a year, the Brackeens decided to adopt him. The Navajo Nation, of which he shares heritage from his biological mother, who battles drug addiction, had an unrelated Navajo family ready to adopt instead, and a judge sided with the tribe.

Chad Brackeen told the Times they were “devastated” by the ruling, and they fought for and won a stay of the judge’s order. When the Navajo Nation eventually backed out, the adoption was finalized this year.

The Brackeens decided to sue to overturn the Indian Child Welfare Act after they feared aspects of the law would allow the adoption to still be challenged down the road.

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The result handed down by a federal judge in October 2018 sent shockwaves through the Native American community when the judge sided with the Brackeens, ruling the Indian Child Welfare Act unconstitutional, partly because it was race-based, the Times reports.

Now, the Brackeens want to adopt the boy’s baby half-sister, and the case is in federal appeals court, pitting the couple against the Navajo Nation, representing the interests of the tribe and the children’s Navajo family that wishes to adopt the girl; four other tribes and the Trump administration. But all 573 of the nation’s federally recognized tribes are closely watching this case as well.

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No matter the outcome, the case will likely be appealed to the U.S. Supreme Court, especially as, according to the Times:

If the law falls for race-based, equal-protection reasons, legal experts say, many affirmative action practices might become vulnerable as well.

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The Brackeens say they’ve formed a loving, familial bond with the boy and that either removing him from their home or not allowing the siblings to grow up together would not be in either child’s best interest.

“Culture is important but attachment is, too,” Jennifer Brackeen told the Times.

The Navajo Nation, of which both children share heritage, opposes the Brackeens and the attack on the Indian Child Welfare Act.

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“We wonder what will happen to these children down the road and how this will all be explained to them,” Kandis Martine, an assistant attorney general of the Navajo Nation, told the Times. “How will they be told that their tribe and their family fought for them, but this non-Native, non-relative family won?”

And their concerns are rooted in an ugly history not all that long ago.

As the Times explains:

Some scholars cite the opening of the Carlisle Indian Industrial School in Pennsylvania in 1879 as the beginning of the Indian children’s diaspora. Students were pulled from reservations across the country to fill the boarding school. Its founder was Brigadier Gen. Richard H. Pratt, who became infamous for proclaiming, “Kill the Indian and save the man.”

Forced removal and conversion of Native children continued for decades. Often, Native families were not told where the children had gone. From 1958 to 1967, the federally funded Indian Adoption Project placed nearly 400 Indian children from Western states with white families nationwide.

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“Our Navajo children are sacred to us,” Celeste Smith, a social worker for the Navajo Nation involved in checking out the fitness of the children’s Navajo family for adoption, testified at a family court hearing about the case. “We have our traditions, our ceremonies and our language handed down to our children. We don’t want to lose that.”

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