Dr. Jennifer and Chad Brackeen and their four kids are a blended family in a fight to stay together. But in the process, they could upend more than 40 years of federal law on the sovereignty of America's Native tribes.
The U.S. Supreme Court is poised to decide the constitutionality of the Indian Child Welfare Act of 1978. Tribes say the ruling has potential to upend more than 40 years of settled law.Dr. Jennifer and Chad Brackeen and their four kids are a blended family in a fight to stay together. But in the process, theymore than 40 years of federal law on the sovereignty of America's Native tribes and affect the fate of numerous Native children.
Dr. Jennifer Brackeen, an anesthesiologist, and her husband, Chad, say attachment to foster children in their care should receive greater consideration by state courts making Native American adoption decisions.Both adoptions, the Brackeens say, have been hindered by landmark federal legislation that dictates what types of parents get priority in the adoption of Native children through state child welfare systems.
But the Brackeens, in their appeal to the high court, argue ICWA is unreasonable and unconstitutional. Conservative legal scholars have also argued that Native American identity as defined under ICWA is inherently an unlawful, race-based classification. Native American leaders demonstrate in front of the U.S. Supreme Court on Nov. 9, 2022, as the justices heard oral arguments over the landmark Indian Child Welfare Act of 1978."The Court has always held that Indian law is not race-based," said Cherokee Nation Deputy Attorney General Chrissi Ross Nimmo.
"The Indian Child Welfare Act [is] quite a stout law to go up against. The justification to deviate from that law is a pretty high bar to overcome," he added. "My mother at that time was addicted to alcohol and, [from] what I've gathered now that I'm older, some hard drugs," Adams said. "Immediately after that, actually, she spiraled in a really dark hole."
More than a decade ago, 27% of Native foster children were placed with other family members; today, it's up to 38%, according to the 2020 Adoption and Foster Care Analysis and Reporting System. Experts attribute the improvement to ICWA.
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