In November 2022, the Supreme Court heard oral arguments in Brackeen v. Haaland. The case concerns the constitutionality of the Indian Child Welfare Act (ICWA), a statute enacted in 1978 to help keep Indian children connected to their families and culture. Most Indian child and family advocates consider ICWA a success. The Act is routinely referred to as one of the most important pieces of Indian legislation ever passed and is commonly described as the “gold standard” in child welfare. The Act restricts the unjustified removal of native children from their families and helps to ensure that when removals do occur, significant attempts will be made to place Indian children with relatives (native or non-native), with their tribe, or in other Indian homes before considering non-Indian placements.
Preferring Indian placements over non-Indian ones has long been controversial. Come spring, this provision, and possibly the entire ICWA, may be found unconstitutional. Such a ruling would contradict longstanding federal Indian law jurisprudence but closely aligns with the Court’s recent adoption-related discussions in Dobbs v. Jackson Women’s Health Organization and Fulton v. City of Philadelphia. Consequently, this article does not focus on the constitutional arguments being brought against ICWA. Instead, using Dobbs and Fulton, this article shows that a majority of justices of the current Court have expressed strong support for policies that increase the supply of adoptable children as well as an inclination to aid adoptive families the legal system deems deserving and desirable. It then argues that because Brackeen gives the Court the opportunity to do both, there is every reason to believe that it will.
Brackeen concerns the potential adoption of Indian children by non-native couples. Pursuant to ICWA, such placements should only occur after attempts to place a child with relatives or other Indian families fail. The Brackeen case involves six non-Indian potential adoptive parents who wished to adopt Indian children and the biological mother of one of the children. The trial court proceedings also included the states of Texas, Indiana, and Louisiana as plaintiffs as well as the Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morengo Band of Mission Indians as intervening defendants.
The titular case, Brackeen v. Haaland, arose when the Brackeens, a white, evangelical Christian couple, challenged the constitutionality of ICWA and specifically the Act’s placement preferences. The Brackeens had been fostering a Navajo child whom they wished to adopt. However, the child had a great aunt, Alvetta James, an enrolled member of the Navajo tribe, who was also “ready and willing to adopt” the child. Under ICWA, as well as general family law principles preferring relative placements, James was entitled to preference and the child should have been placed in her care. Nevertheless, instead of acquiescing to the child’s placement with a member of his family and tribe, the Brackeens challenged the constitutionality of the Act. Then, when “Ms. James learned that the appeals process could take years to complete,” she withdrew her adoption petition out of concern“that the delay would ultimately make [her great-nephew’s] transition harder.” This enabled the Brackeens to adopt the boy, but not before filing suit in federal court challenging ICWA. The Brackeens—together with the state of Texas—claimed in their October 2017 complaint that the law is unconstitutional because its placement preferences impermissibly discriminate on the basis of race, exceed Congress’s power over Indian affairs, and impermissibly commandeer state governments and courts.
The constitutional argument raised by the Brackeens is not new. The Supreme Court has repeatedly confirmed that “Indian” is a political, not racial, designation and that Congress has the power and the responsibility to enact legislation protecting Indian tribes and their citizens. Thus, based on judicial precedent, the Brackeens’ challenge should have been rejected. This is not what occurred. Ignoring long-standing precedent, the Texas district court found the Act’s placement preferences unconstitutional. On appeal, the Fifth Circuit reversed this holding, but the Fifth Circuit, en banc, reheard the case and, in a very fractured opinion, reversed in part the lower court’s finding that the Act was racially discriminatory while upholding other parts of the district court’s opinion. Finally, in February 2022, the Supreme Court granted certiorari to resolve the uncertainty created by the Brackeen litigation and determine the fate of ICWA.
Long-established precedent holds that ICWA’s preference categories are constitutional. However, in Dobbs, the Court rejected more than 40 years of case law when it overturned the constitutional right to abortion. Consequently, although predicting Supreme Court decisions has always been difficult, judicial precedent may now be significantly less informative than in the past. In analyzing how the Court is likely to rule in Brackeen, it may be more helpful to consider the adoption policies promoted by the Court’s recent adoption-related decisions rather than the Court’s traditional Indian law jurisprudence. In fact, while primarily an abortion case, Dobbs itself may provide a strong indication of how Brackeen will be decided.
The Dobbs Court’s interest in adoption first appeared during oral arguments when Justice Amy Coney Barrett commented that since people could easily arrange for the adoption of their babies, “pregnancy and parenthood” were no longer part of the “same burden.” This idea then became an important part of the majority’s opinion. Justice Alito acknowledged that outlawing abortion would force women to remain pregnant, but he defended this decision by arguing it would not force them to parent. According to Alito, unhappily pregnant women could simply put their unwanted children up for adoption and, due to the low “domestic supply of infants,” they would be readily adopted. Alito wrote, “[A] woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.” Adoption, not abortion, was the Court’s solution to unwanted pregnancy. In addition, the Court suggested that the reverse was also true—unwanted pregnancies could be a solution to current adoption shortages.
In Dobbs, Justice Alito noted the many “suitable home[s]” available for unwanted children. And yet, one year earlier, in Fulton v. City of Philadelphia, the Court held that foster care agencies could exclude potential adopters based on the organizations’ religious beliefs that some homes were not “suitable.” The specific issue in Fulton was whether Philadelphia could cancel its contract with a Roman Catholic foster care agency that refused to work with same-sex couples as foster parents. The Court held it could not. According to the Court, Philadelphia violated the Free Exercise Clause of the First Amendment by refusing to contract with Catholic Social Services (CSS) once it learned that the organization would not certify same-sex couples for foster care. It concluded that since the city could exempt child placement agencies from its contractual nondiscrimination requirements on a discretionary basis, the requirements were not neutral or generally applicable and, thus, must be analyzed under strict scrutiny. Then, applying this heightened standard of review, the Court held the city could not deny CSS an exemption on religious grounds and that CSS had the right to make foster child placements based on its religious beliefs regarding marriage and sexuality.
Given the discretion afforded under the Philadelphia contractual provision, it is possible the Fulton decision will be read narrowly, and the greater rights and protections afforded to certain religiously defined suitable foster and adoptive families will be limited to locales with foster care nondiscrimination requirements similar to Philadelphia’s. However, that outcome seems unlikely. Although the Fulton Court did not overturn Employment Division v. Smith, the case holding that neutral and generally applicable laws are ordinarily not subject to strict scrutiny, it gave few assurances it wouldn’t do so in the future. In fact, it gave significant indications it was simply waiting for a more opportune fact pattern. If that is the case, then Fulton is just the beginning and the privileging of certain types of foster and adoptive parents may soon become even more widely permissible.
At its core, Brackeen is an adoption case. It is about who can adopt and which kids get adopted. These were important issues in both Dobbs and Fulton. In fact, they were so important, they arguably blinded the Court to the negative repercussions of the adoption policies they were promoting. In Dobbs, adoption was presented as the solution to unwanted parenthood even though there is little support for this supposition. Most adoption experts predict only a small percentage of women with unintended pregnancies will ultimately choose adoption. Instead, the majority will be raised by their birth families. In a Washington Post article, University of California San Francisco sociologist Gretchen Sisson, whose work focuses on abortion and adoption, predicted: “What we’re going to see, I think, is many more people parenting children that they did not intend to have.” Consequently, the Court was overly optimistic about the likely increase in adoptable newborns as a result of its decision while simultaneously naïve about the case’s likely effect on removal and foster care rates. Parenting unplanned children may increase the risk of abuse and neglect. Therefore, while Dobbs may lead to a small increase in the number of newborn adoptions, it may also lead to an increase in the number of children entering foster care due to abuse and neglect.
Like the Dobbs Court, the Fulton Court also ignored many of the child welfare repercussions of its decision. Fulton permits state-contracted foster and adoption agencies to define what is meant by “suitable homes” according to their religious beliefs. However, in parts of the country, faith-based organizations are the only foster and adoption options. As a result, a significant number of prospective adoptive and foster parents, those who don’t meet those organizations’ requirements, now are effectively barred from receiving children. This change should have little effect on the placement of healthy newborns, but it may drastically reduce the likelihood that less-sought-after children receive the opportunity to live in a safe and loving home.
Most Indian child advocates believe overturning ICWA would be extremely harmful for Indian children and families. However, the Court’s recent adoption cases indicate it will not be particularly receptive to such concerns. Instead, Dobbs and Fulton suggest that some justices on the Brackeen Court may be primarily focused on the fact that ICWA makes adoptions more difficult, particularly for the types of families the law typically deems the most desirable, i.e. straight, married couples.
For 50 years, reliable birth control and access to safe abortions dramatically reduced the number of unplanned pregnancies. This in turn decreased the number of American children available for adoption. In response to this diminished supply, especially the number of white newborns, prospective adoptive parents began to reconsider the stigmas that previously made children of color “unadoptable.” Many became willing to adopt Latino, Asian, or American Indian children and, to a lesser extent, African American infants as well. When there still weren’t enough children to satisfy America’s adoption demand, prospective adopters turned to international adoption. By the early 2000s, nearly 25,000 foreign children were adopted by American families every year. However, in the early 2010s, legitimate fears of commodification, corruption, exploitation, and child laundering brought these adoptions to a near standstill. Since then, there have been attempts to revitalize international adoptions, but these have largely failed.
The most well-known effort to increase international adoptions was the proposed Children in Families First Act (CHIFF), which sought to eliminate the Hague Convention’s preference for in-country care solutions in return for U.S. aid. CHIFF was aimed at increasing the number of foreign children available for adoption by American families. CHIFF failed to pass, but the idea of increasing adoptions by removing children from poorer families and placing them with more privileged families did not disappear and has been greatly helped by the Supreme Court’s recent adoption decisions.
The case of immigrant child adoptions is illustrative. For years, immigrant children have been separated from their undocumented parents and adopted by American families. In 2018, this practice garnered national attention when hundreds of immigrant children were removed from their families and placed in American homes. The organization in charge of many of these placements, Bethany Christian Services, was a religiously affiliated adoption agency similar to the agency at issue in Fulton. Such agencies have been accused of promoting adoptions through coercive and discriminatory tactics. In an article for The Guardian, journalist Jill Filipovic described such agencies as essentially engaging in “baby-stealing . . . justified by the arrogant assumption that American Christian families provide better homes for children than, say, a poor Ethiopian mother ever could.” Both Dobbs and Fulton similarly express tacit, if not explicit, support for such tactics by encouraging unintended childbearing and adoption discrimination, respectively. Now, Brackeen offers the Court another opportunity to further this adoption policy.
Today, Indian children continue to be removed from their families at much higher rates than non-native children. However, these removal and adoption efforts are often thwarted by ICWA. Notably, in 2015, the state of South Dakota was sued for removing hundreds of Indian children from their families and placing them in non-Indian homes. Indian people comprise less than 9 percent of the state’s population, yet Indian children made up 52 percent of the children in state foster care. This means they were 11 times more likely to be placed in foster care than white children. The 2015 class action lawsuit brought by the ACLU revealed that these foster care disparities were not accidental. South Dakota Indian child removal hearings typically lasted fewer than five minutes (some as little as 60 seconds) and the state had a success rate of 100%. These were blatant violations of ICWA, and the district court agreed, ordering the state to cease such actions. Whether the Brackeen Court would consider this outcome—one that prevents hundreds of potential adoptions—as desirable is less clear. Dobbs and Fulton suggest it would not.
ICWA makes the removal and adoption of Indian children by non-Indian families difficult. It reduces the number of children available for adoption and prevents “suitable” families from adopting them. This was the Act’s intent. Nevertheless, this goal appears to conflict with the Court’s current adoption policies. Both Dobbs and Fulton helped increase the number of children available for adoption by certain types of families. During oral arguments in Brackeen, Justice Kavanaugh expressed skepticism for the constitutionality of the Act by asking if Congress could “say that, you know, Catholic parents should get a preference[?]” However, as this essay has argued, such parents frequently do get preference. Consequently, it is reasonable to expect that when faced with another opportunity to expand the number of adoptive placements for the “right” kind of families, the Brackeen Court will choose to do so. How the Court will effectuate this adoption preference remains uncertain. In the worst-case scenario, the Court may find the entire Act unconstitutional, but, even if that doesn’t occur, given the Court’s current pro-adoption policies, it seems almost certain it will eliminate some, if not all, of the placement preferences. ICWA was intended to reduce the adoption of Indian children by non-Indian potential parents. It has been successful in this goal and, ultimately, that may be why it (was/is) doomed.
