Due to a provision that favors tribes, a Texas family is fighting in the Supreme Court to keep their adopted Native American child.

Due to a federal legislation that codifies what Chad and Jennifer Brackeen’s lawyers claim to be “racial discrimination,” they nearly lost their Native American adopted son. Now, the family is battling to maintain custody of his half-sister in a Supreme Court case that might overturn a significant portion of that rule, but Native tribes are concerned that it could have a significant impact on their sovereignty.

Haaland v. Brackeen is a case that incorporates cases from a few different families, several places with an interest, including Texas, where the Brackeens reside. The Indian Child Welfare Act (ICWA), enacted in the 1970s to safeguard Native American children in state child custody processes, is at the focus of the debate.

The law was enacted in response to the high prevalence of wrongfully and frequently without proper due process adopted Native children by non-tribal members. It gives priority to placing Native children with their tribe, extended family, and, in cases where that isn’t possible, with another Native family. The term “good cause” is not defined, however exceptions are permitted.

According to a brief from the Brackeens’ attorneys, “Congress’s racial discrimination is “particularly clear” in ICWA’s third placement preference… which overtly favors any “Indian family” from any of the 574 tribes.

According to the court document, the placement preferences “work individually and collectively” to disfavor non-Indian parents who want to adopt an Indian kid.
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The legal representatives for the Brackeens also argued that Congress overstepped its powers by attempting to control local child custody disputes.

After his mother, a Navajo Nation member, was unable to care for him, the Brackeens started caring for their adopted son, known as A.L.M. in court filings, in 2016. The Brackeens claim that after more than a year, the Navajo Nation recognized A.L.M. as a tribal member and attempted to reunite him with other tribe members who were not related to him and resided in a different state.

They had determined that we weren’t a good place for him to live. And so,’ Jennifer Brackeen told Fox News Digital, “we made the decision to pursue adoption through the legal system.”

The Navajo Nation’s intended recipient family for A.L.M. withdrew from the proceedings, and the Brackeens were awarded custody. But after A.L.M.’s mother gave birth to his half-sister, Y.R.J., their adoption story continued.

The biological mother agreed that the child should live with the Brackeens. However, the Brackeens’ attorneys claim that the Navajo Nation wanted to relocate Y.R.J. “in another state hundreds of miles away with either a great-aunt or an unrelated Navajo spouse.”


That case is still pending in a Texas state court. However, according to the Brackeens’ legal counsel, the outcome of their Supreme Court case, which arose from their struggle to retain A.L.M., would probably determine the outcome of Y.R.J.’s lawsuit as well as the future of their family.

We have been trying to finalize that adoption for three and a half years in court, said Chad Brackeen.

Our youngest child, who is 13 years old, and the younger sister are both young. Therefore, he continued, “Only the eldest are truly aware of what we’re going through. “And it’s our duty to kind of protect our children at this point of the uncertainty, that she may eventually be removed, pulled from our home, and moved states away,” we say.

The tribes contend that the Brackeens’ claim that preferring placement with Native families constitutes racial discrimination contradicts decades of U.S. legal precedent that treats the tribes as political organizations rather than racial categories. This notion, according to the litigating tribes, is crucial to “Congress’ particular responsibilities toward the Indians,” according to the Cherokee Nation, Oneida Nation, and Morongo Band of Mission Indians.

According to Supreme Court precedent, Indian tribes are political rather than racial groups of people, said Chrissi Ross Nimmo, the Cherokee Nation’s deputy attorney general, to reporters on Tuesday. “Tribes establish citizenship, much like nations.”


The existence of Indian countries in our country today would be called into doubt, according to Nimmo, if the Supreme Court decided that the ICWA’s provisions are racially discriminatory.

According to a brief from the tribes, “Tribes are separate sovereigns, and the Constitution expressly permits Congress to legislate especially for Indians.” As a result, “Congress has created statutes that particularly legislate for Indians” (sic), “protecting their lands, regulating their trade, prosecuting crimes against them, managing their resources, and providing education, housing, and healthcare (sic)”.

The lawsuit has been referred to as a “facial attack on tribal sovereignty,” according to Kate Fort, director of the Indian Law Clinic at Michigan State University. The possibility of a fundamental rethinking of how Congress may or cannot adopt laws for tribes, according to her, was also mentioned.

According to Fort, the arguments being used in the Brackeen case are already being imitated by other litigants who are suing in Washington State over a purported monopoly on gaming for Native Americans.

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