The U.S. Supreme Court heard a case Wednesday that presents a major challenge to the Indian Child Welfare Act.
ICWA, as it is known, is a federal law that allows tribes to make adoption decisions for Native children, to keep them connected to their culture and to keep Native families intact.
The plaintiffs taking their case to the Supreme Court say that’s unconstitutional and racial discrimination.
Community reporting fellow Chen Chen with KTOO has been following the case — called Haaland v. Brackeen — and reporting on what ICWA means to Alaska.
And because Native children represent about 55% of all children in state custody, Chen says overturning ICWA would have huge implications for Alaska. At the same time, Native people only make up a little over 20% of the population, so there’s a disparity, she says, and a feeling that the state hasn’t done enough to implement ICWA to begin with.
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Editor’s note: This interview was recorded prior to the Supreme Court hearing Haaland v. Brackeen.
The following transcript has been lightly edited for clarity.
Chen Chen: Yeah, so for my second story on ICWA, I interviewed a tribal court judge. And it seems that from what I’ve spoken to her about, perhaps compared to other states that have better implementation of ICWA, Alaska just hasn’t really been putting in a lot of resources to combat those figures. Not to say that there aren’t obviously many people in the system who are working to change things. But I think it’s especially tough in Alaska, because of shortages and staff and shortages and resources. So here’s how judge Debra O’Gara puts it:
Debra O’Gara: Some states are a little bit better than other states. But right now, Alaska, I would say is not doing so well. Alaska has not followed the spirit or the letter of the law. If it did, there would not be that disproportionality.
CC: So one of the things that Judge O’Gara really highlights is that ICWA mandates placement preferences so that resources are put in to keep families together. And then the second choice is to keep kids within their communities. And because a lot of that isn’t happening, Judge O’Gara has these criticisms for the state of ICWA right now.
Casey Grove: Yeah, let’s break that down just a little bit more, too, because there’s a preference to keep kids that are in a — you know, maybe a bad situation, or at least a perceived bad situation by Office of Children’s Services workers or whatever — there’s a preference that if they are going to be removed from a home for their own protection that they’d be then placed with another Native family or even somebody within the same family, right?
CC: Yes, there’s definitely a preference for placing the children as close to their family as possible, while their parents get time to kind of rehabilitate or figure out their problems. So one of the main things that ICWA tries to do is to help reunite families. So when kids are put into foster care, there’s resources also, that should be put in for the parents, and for the families like grandparents, to be able to take care of the child and improve their abilities as a parent and get help for the different mental and physical things that they need help for.
CG: Gotcha. Yeah. Obviously, for the children that are in the middle of ongoing cases, their identities are protected, and rightfully so. That’s confidential. But you did speak with somebody who’s a former adoptee, right? And what did she have to say about this?
CC: Yeah, I spoke to a former adoptee who was adopted in the year that ICWA was passed in 1978. So I think that was a very interesting perspective from someone, because I think a lot of those perspectives are lost when we talk about ICWA. And we talk about it as a theoretical thing, when, for many adoptees, it means a lot, and it’s a very real law for them. Jennifer Quinto was adopted from an Athabaskan family into a multicultural, Tlingit household in Juneau.
JQ: For me and my adoption, it was a big gamble. That law wasn’t in place, and I could have very easily been placed with another family. And how many children are there that didn’t have that protection? And like I said, there were so many adoptees that I met, that I could feel the intensity of the hurt and the anger. And all of that came from the fact that they were, you know, being raised with families that just didn’t understand the complexities.
CG: So she seems to be very much in favor of ICWA, at least the intentions of ICWA, right?
CC: Yeah, so ICWA has a lot of different actual ways it’s implemented in each state. But I think that from speaking to Jennifer, it seems like no matter what ICWA actually looks like in each state, just having that exist is already saying to her, like, you matter. Adoptees like you matter and your identity matters.
JQ: Who could ever believe that that would be taken away? You know, that’s one of the last things that is keeping our community together in the way that it has. So imagining a world where that doesn’t exist is just too, too painful.
CG: That’s definitely all interesting. And it’s good to kind of know where ICWA has come from and what the intentions of it are. But we’re here to talk about a very particular lawsuit that you’ve been following, a court case. Tell me about that. Who’s the plaintiff there? Who’s the defendant? What is the change that they’re seeking?
CC: The U.S. Supreme Court will hear a case called Haaland vs. Brackeen. And the case is trying to say the plaintiffs — including Brackeen and various other states and different parents who are trying to adopt Native children — they’re all kind of getting at how they think that it was not constitutional, because it gives preference to Native families and tribes for Native children over all other kinds of people. And in the lawsuit, they classify that as racial discrimination and violating the Equal Protection Clause. And what’s happening in the Brackeen case is that these parents from Texas who are white, adopted a child who was from a tribe while they were fostering him. And then they got into a lawsuit because they wanted to adopt that kid’s brother. And the problem was the tribe didn’t want to let that child be adopted out of the tribe. And that child’s aunt was very willing and wanted to adopt the kid. And in the end, the Brackeens did get both children but were still not happy with the terms of the lawsuit, which included that the kid had to, you know, visit their grandparents every summer. So basically, they’re the main family that’s involved, are the Brackeens.
CG: So the U.S. Supreme Court’s about to hear this case, and I guess a decision would be, you know, somewhere down the road from that, but are the people that you’re talking to, do they have guesses about how the Supreme Court might rule on this?
CC: So the two people that I mainly spoke to both don’t think it’s going to be overturned, because it’s almost too far out of, like, reality for a lot of Alaska Native (people) for ICWA to be overturned. And I think the other thing is that from other articles I’ve read about ICWA, from various perspectives outside of Alaska, it also seems that ICWA would have very far-reaching implications if it’s overturned, because that is saying that tribal sovereignty is just not a thing. Because if they rule that being Alaska Native or being Native American is a racial classification rather than a political classification, that’s a direct threat to tribal sovereignty.