Matt and Melanie Capobianco are a friendly, highly educated, white couple living in South Carolina. They wanted to have a kid, but ran into infertility issues. They decide to adopt instead.
Enter Christinna Maldanado. She is a poor, single mother living in Oklahoma, and decides she wants to give her baby up for adoption. She picks the Capobiancos. The Capobiancos adopt the baby and name her Veronica.
On December 31, 2011, when Veronica was two years old, her biological father appeared and fought for custody over her. While the Capobiancos argued that Dusten Brown had waived his rights to custody, Brown claimed that his conduct was appropriate under the Indian Child Welfare Act (ICWA). Brown is part of the Cherokee nation, making Veronica eligible to be Cherokee. That evening, Veronica was ripped from the only home she’s known and handed over to a father who only recently seemed to show any interest in custody, all because he is an American Indian.
That was the media narrative, at least. Adoptive Couple v. Baby Girl ended up making its way all the way to the Supreme Court, where they ruled that Veronica should be returned to the Capobiancos. The implications of the decision inverted the meaning of the law designed to protect Indian communities and families. While Adoptive Couple narrowed ICWA, the case Brackeen v. Haaland, which will be decided this term, may repeal ICWA altogether. Given the current makeup of the court, it is highly likely ICWA will be ruled unconstitutional. This would dispose of one of the last guards protecting American Indian children and American Indian sovereignty altogether.
Broadly speaking, ICWA establishes that tribal governments have jurisdiction in cases involving the families, foster care, and adoption of American Indian children. The law also establishes a series of procedures designed to give preference for Indian children to stay with Indian families. Ultimately, ICWA was designed to make it more difficult to take Indian children away from their families or their community.
ICWA was an attempt to atone for the long history of violent dispossession and ethnic cleansing of American Indians in the United States. Policies promoting the assimilation of American Indian children into Anglo-American culture by placing them in boarding schools date back two centuries. In the 1950s and 60s, the Bureau of Indian Affairs turned to the child welfare system to create a new initiative in Indian assimilation. Through the Indian Adoption Project, hundreds of Indian children were removed from their parents and adopted by white families. Prior to ICWA’s passing in 1978, Indian children faced disproportionately high rates of forced removal from their tribal homes—anywhere between 25% to 35% of all Indian children were being forcibly removed from their families and placed in predominantly non-Indian homes. ICWA was an acknowledgement that the forcible removal of a third of Indian children posed a legitimate, existential threat to tribal communities.
The Supreme Court ruled in Adoptive Couple that in situations where the American Indian parent never had custody of the child, ICWA does not apply. The majority supports this argument through an incredibly strained interpretation of the law and brief references in the statute of the parent’s “continued custody of the child.” The dissenting opinions point out the inadequacy of using a single phrase to disregard the purpose of the law itself, which was to protect the interests of Indian children and promote the stability of Indian tribes and families. Under the Court’s ruling, the removal of Indian children from their families is permitted as long as you do it quickly—before the parents have custody. Justice Sonia Sotomayor points out that, even if you don’t interpret it that way, the Court should not allow themselves to be strangled by literalism. This narrow interpretation of ICWA has serious implications for the fate of Brackeen.
A 10-month-old Navajo boy, only known as A.L.M., was placed in the care of a white evangelical Christian couple in 2016. A court ruled that under ICWA, the Texas couple could not adopt A.L.M. and the boy would be placed with a Navajo family he is not related to. Chad and Jennifer Brackeen subsequently filed a federal lawsuit seeking to invalidate ICWA altogether, accusing Congress of racial discrimination against non-Indian families seeking to adopt Indian children. U.S. Interior Secretary Deb Haaland said that the classification of Native American is a political determination rather than a racial one, making ICWA constitutional since the Equal Protection clause would not apply.
It’s important to note that Indian tribes do not see the determination of American Indian as a racial category. Rather, tribes are governmental and political entities. Categorizing tribes as a racial category underscores the ignorance and misunderstanding of historical and current American Indian life. Tribes’ governmental status situates American Indians differently than other minority groups for many legal purposes. Laws involving American Indian tribes are rooted in the idea that tribes are sovereign entities, and invalidating ICWA on a racial basis may bring down the rest of American Indian law with it. In fact, Chuck Hoskin Jr., the principal chief of the Cherokee Nation, told Vox:
“The core of [Brackeen’s] argument is that it’s an unfair racial preference and that we should have a colorblind system. What that misses is what’s a bedrock of federal Indian law in this country, which is that tribes are sovereign, not distinguished as a race but as a special political designation. That’s a critical underpinning of not just ICWA, but many laws that relate to housing and healthcare and education and employment. For that to be eroded by a successful attack on ICWA — that would have broad implications on all of these.”
Despite these grave implications, the current makeup of the Supreme Court does not bode well for the fate of ICWA. Chief Justice John Roberts and Justice Samuel Alito have already signaled in Adoptive Couple that they buy into racial arguments against ICWA. Justice Clarence Thomas wrote in a concurring opinion that he already believes the entire law is unconstitutional. Justices Brett Kavanaugh and Amy Coney Barrett seem unlikely to break away from a conservative majority. Justice Stephen Breyer ruled with the majority in Adoptive Couple, but may side with the other two liberal justices—Elena Kagan and Sotomayor—if he believes overruling the entirety of ICWA is too extreme. Justice Neil Gorsuch, who hails from the Tenth Circuit that encompasses a large swath of federally recognized Indian tribes, is familiar with Indian law and has been willing in the past to protect tribal rights and recognize tribes as sovereign governments. It is unlikely that the justices will rule to completely uphold ICWA.
When people hear of the basics of Adoptive Couple and Brackeen in a vacuum, the circumstances seem unjust. The Capobiancos and Brackeens are sympathetic plaintiffs—parents seeking to adopt a child. However, these adoption cases have much greater implications. ICWA was passed as a way to stop a campaign of state-sponsored social engineering designed to eradicate American Indians. Failure to uphold ICWA would be the continuation of centuries of gross injustice and informal policies of ethnic cleansing. These cases are a reminder that the age-old legal axiom once again rings true: “hard cases make bad law.”