The "Surreal" SCOTUS Case on Indian Adoptions

A pivotal SCOTUS case, Haaland v. Brackeen, centers on the Indian Child Welfare Act (ICWA), landmark legislation passed in 1978. With a decision coming at any moment, I spoke with Matthew L.M. Fletcher, the Harry Burns Hutchins Collegiate Professor of Law at Michigan Law.

Professor Fletcher teaches and writes in the areas of federal Indian law, American Indian tribal law, Anishinaabe legal and political philosophy, constitutional law, and legal ethics. He sits as the Chief Justice of the Pokagon Band of Potawatomi Indians and the Poarch Band of Creek Indians.

Professor Fletcher and I discussed the history that led to ICWA’s passing: namely, the government’s removal of Native children from their homes dating back to the Civil War. A condensed transcript edited for clarity is below.

Ben: Professor Fletcher, thank you so much for being here.

MF: Thanks for asking me. 

Ben: Of course. Today I want to contextualize Haaland v. Brackeen, a case that could have far wider-reaching implications beyond Texas, where the dispute originates.

To kick us off, could you please give a quick summary of the case? 

MF: Sure. Haaland v. Brackeen is a challenge to the constitutionality of the Indian Child Welfare Act by the state of Texas and three couples who are attempting to adopt (and actually already have adopted) American Indian children.

Ben: To my understanding, there's a lot of history that precipitates this kind of action. Can you describe how the US government and US citizens began targeting Native children through schools in the 1800s, please? 

MF: Prior to the Civil War, there were a lot of boarding schools and day schools for Indian children funded by the United States government and operated mostly by religious institutions. Most of the schools were actually not that oppressive, but after the Civil War, President Ulysses S. Grant, who’d been the lead Union general, gave a lot of political appointments to his former military buddies. 

Suddenly, former military officers had enormous political power over Indian people. The boarding schools became like boot camps, and the US eventually made it mandatory for Indian children as young as four or five years old to be relocated, usually off their reservation, to these military-style schools.

Ben: Why did the US government force Native children into schools run by people whom it really doesn't sound like you'd want to go to school with?

MF: Throughout the 19th century, Indian tribes signed treaties with the US—not all 574 federally recognized tribes, but most tribes outside of Alaska and California did. And one of the things that tribal negotiators asked for was educational assistance.

So, peppered throughout the treaties were promises by the US to educate Indian kids in day schools: to teach them English as a second language, western math, and science—basically, the sort of knowledge that would help tribes integrate into the larger community while living in their homes.

But the US perverted this request for educational opportunities, transforming it into mandatory boarding schools. The reason, of course, was quite genocidal and ethnocentric. The schools were designed to destroy tribal communities by taking Indian kids away from their homes so that they’d forget about their language, culture, and religion; to dress them up as non-Indians and teach them menial labor so that there would be skilled, almost slave labor for many local farmers.

Ben: As egregious as it sounds, and worse. You've written interestingly about differing conceptions of children within American political philosophy and within Native communities. There’s a slight difference...

MF: A dramatic difference. Anishinaabe people, like a lot of Indigenous people, treat children almost like supernatural creatures when they're babies, infants, and toddlers wandering around. Many people ascribe to them sort of a mysticism. You don't mess with your children because they're still partly in the spirit world. And in essence, even if you don't believe in any of that stuff, it means that in Native cultures children are equal members of society. 

But when I went to law school, one of the first things we learned (to the extent that students learn this anymore) is that in US society, children are effectively the property of their parents. That’s one reason why boarding schools and the government viewed Native children as so easily removable.

Ben: How did placing Native kids in boarding schools lead to the adoption of Native kids?

MF: During the Great Depression, the government decided to get out of the business of educating Indian children. The boarding school practice was very expensive, so politicians turned most of the responsibility over to states and actually paid them to accept Indian children into their public schools.

This practice quickly turned into a project by states to remove Indian children from their reservation homes and adopt them out to non-Indians. States kept going after tribes for the same reason that the federal government did: to try and “kill the Indian and save the man,” so to speak.

Ben: How did the government’s policy of “termination” spur further adoptions after World War II? 

MF: During the war, the US zeroed out the Indian Affairs budget because all available resources went to the war effort. Interestingly enough, a lot of Indian people thrived during World War II because many Native men and women went to war and received regular paychecks and sent some money home.

But as World War II ended and the Cold War began, Congress began to rethink Indian affairs. We hear a lot about the Red Scare and McCarthyism, but the government went after Indian tribes, too, because many tribes owned their land communally. People were complaining to Congress that right in the heart of Indian Country was a bunch of communist nations. 

This unique and acute political pressure led the United States to adopt “termination.” Under this policy, the government “terminated” many tribes and sold off their property. Ironically, this kind of land expropriation was more of a communistic practice, but I guess there’s no irony in the world anymore.

Ben: I believe it was Yoda who said “the self-awareness has never been strong with Congress.”

By the 70s, the adoptions were endemic. Investigations by the Association on American Indian Affairs found that over the preceding decades, 25-35% of all Indian children in the United States had been removed and adopted out. About 80-90% of their adopted families were not Indians.

Ben: This leads us back to ICWA. How did the Association’s investigations spark the landmark legislation?

MF: Enormous kudos have to go to the Association. In the late 60s, they were really the first national organization to pay attention to the problem of Indian child welfare and removals. And you know, nobody wanted to talk about that sort of thing. Even in tribal communities, when you lose your children to the state, it's easy to just curl up and not think about it anymore—it's horrible. 

Also, Indian people didn't have lawyers. So the association started providing them with lawyers and publicizing what was going on. The Association had its own lawyers, too, who drafted legislation that became the Indian Child Welfare Act in 1978. The law was designed to correct the litany of due process violations that separated Indian families endured, as well as to correct some of the racism and ethnocentrism in child welfare. 

Ben: And now ICWA is under attack in Haaland v. Brackeen. Would you mind giving a few more details on the case? Who are the Brackeens? 

MF: The Brackeens are Christian evangelicals who wanted to adopt babies to save them. They fostered two babies before getting a third, who is Cherokee and Navajo. Since the child’s parents couldn’t rehabilitate themselves, his relatives in the Navajo Nation wanted to adopt him, but the Brackeens made an argument that they were the better parents. The state of Texas ruled in the Brackeens’ favor because, effectively, they have more money, and because there are many biases inherent to adoption cases that worked in their favor.

Now, you might be wondering how the case made its way to the Supreme Court. Well, right before the order that said the Brackeens were going to win, their attorneys, who are movement conservatives, encouraged them to act as shills in a separate case where the state of Texas sued the US and challenged ICWA

So the Brackeens have custody of the child. The adoption fight is over. But the case that Texas filed on their behalf continues. 

Ben: Why did Texas seize the opportunity to challenge ICWA? Is it correct to suggest then that there are... greasier motivations at play?

MF: There are a few possible explanations. One of the plaintiffs’ claims is that ICWA violates the equal protection principle inferred in the right to due process. They’re essentially saying the law is racially discriminatory towards non-Indians.

If SCOTUS agrees, it wouldn’t have much impact on ICWA, because the actual statute of ICWA that this claim challenges is rarely invoked. But it could weaken other laws protecting Indians, such as laws protecting tribal land. I think this legal rationale is kind of tenuous, but the fact that many oil and gas interests have filed briefs in the case does make you wonder why they care about child welfare.

There’s also a kind of stupid states’ rights issue at play. Texas is more or less saying Congress has forced them to abide by ICWA and treat Indian people like humans. In reality, the state has a terrible child welfare system, and their solution is to turn it over to private entities—to the same people who own private prisons. So that might be why you get groups like the Heritage Foundation and the Cato Institute involved in this case because they would like to privatize government, too.

The outcome really depends on what arguments attract the Court’s attention. I’ll say this: some of ICWA, if not all of it, will go away. This court is incredibly conservative, and they want those who supported their rise to power to know that they’ll help destroy civil rights statutes.

Ben: So to summarize, we're seeing a kind of classic mixture of conservative desires at play, whether it be privatization, possible resource exploitation, or just general striking down of civil rights and protections of Indian Country for the sake of striking those protections down.

MF: It's just so impossible to understand. There are centuries of precedents that don't seem to matter to the justices. It’s also surreal that we’re even talking about this. To reiterate, the Brackeens already won custody, and usually, SCOTUS kicks people out of the Court in that kind of scenario. You don't usually get to keep litigating to say you win again, but here we are.

Ben: Right, I have enough trouble winning anything once, let alone twice, so I’d probably stop there.

Professor Fletcher, this has been illuminating. I really appreciate your contextualizing 150 years of history and tribal law.

MF: Sure thing.