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MYRNA BROWN, HOST: Coming up next on The World and Everything in It: the future of Indian adoptions.

Two weeks ago, the Supreme Court handed down its decision in the case Haaland (Holland) versus Brackeen. The case centered around three families that want to foster and adopt Native American children, but tribal leaders denied their requests under the Indian Child Welfare Act, or ICWA.

PAUL BUTLER, HOST: The case raises a variety of questions about ICWA, but the most concrete question was this … does ICWA violate the equal protection clause of the Constitution by giving Indian families and tribes preference over non-native families adopting Native American children?

BROWN: On June 15th, the Court held in a 7 to 2 decision that ICWA (ICK-Wah) does not violate the Constitution. But it avoided the merits of the race question, and instead held that the parties didn’t have standing. In other words, it said that the foster couples and state governments didn’t have a proper stake in the controversy to bring the issue to court.

So what’s the real significance of this decision, and how will it affect Native American adoptions in the future?

BUTLER: Joining us now to talk about it is Mark Fiddler. He’s an attorney based in Minnesota who has briefed the Supreme Court on Child Welfare cases and is the founding director of the Indian Child Welfare Law Center. He is also a member of the Turtle Mountain Band of Chippewa Indians.

BROWN: Good morning, Mark.

MARK FIDDLER: Good morning, Myrna.

BROWN: Mark, what is the Indian Child Welfare Act and how is it connected to keeping Indian culture alive in the United States?

FIDDLER: So the Indian Child Welfare Act, or ICWA, as it's called for short, it was passed in 78. And it tried to address the disproportionate rate of removal of Native American children from their homes.

And so Congress heard that a lot of times in the 60s and 70s, Indian kids could be removed for reasons of poverty, more commonly being raised by an auntie or grandma instead of with by the parent. And those were customary kin relationships, practices that weren't by themselves evidence of neglect or abuse. And so Congress required a higher standard of proof to place those children into foster care, or to terminate parental rights.

So what was an issue in the Brackeen versus Haaland case was the definition of "Indian child" will so how does ICWA categorize children? Is it a categorization based on race and then when children are placed, are those preferences constitutional?

BROWN: As far as the race question, the court held the parties had no standing to sue here. Why did the court say the Brackeens (in particular) had no standing to sue when they are actually fostering a child they're trying to adopt? What facts or situation is needed in order for the court to answer the race question. In other words, in what circumstances would a party have standing?

FIDDLER: What standing basically means is that the court has to have the power to help the people that are coming before it. So if—in this case, we sued in federal court, we sued the United States Department of Interior, Secretary Haaland, and asked for what's called a declaratory judgment. And so what the court said is, well, you didn't sue the states themselves.

And so while the court never took issue with the fact that the plaintiffs were harmed, the problem was, the court said, ‘in order for us to help you, to give you the relief you want, we have to have a judgment before us that we can reverse, and there wasn't a judgment.’

And so Justice Kavanaugh clearly said that equal protection arguments were grave, I think he said, in his words. And he said in the event that plaintiffs bring up a case in the state court system, and there's a state court judgment before us, then the issue can be addressed at that time. So, you know, when a judge, a justice puts that kind of language in a decision, it's basically shouting out to lawyers in America. Hey, guys, if you want to do it, here's how you do it. Bring it on.

BROWN: Whatever happened to the concept of “best interest of the child?” A child who has formed attachment to his foster parents, loves them and they the child, has no influence on legal analysis here. Why not?

FIDDLER: ICWA presumes that the placement of the child with the Indian family is in the child's best interests. And that overrides any kind of individualistic determination of what the child needs in his in his or her own right. And so like every state's got a best interest of the child test. And it looks at things like attachment and a child's health and security and connections with the community and cultural upbringing and things like that. And those criteria are applied on a case by case basis. But when you take that standard and couple it with ICWA, ICWA kind of squashes that standard, and says, ‘well, that's all fine and dandy, but if you can't show the court, good cause to deviate from the placement preferences. The best interests don't matter. They literally don't matter. They're irrelevant.

BROWN: Mark Fiddler is an attorney and the founding director of the Indian Child Welfare Law Center. Thank you for your time!

FIDDLER: Thank you, Myrna, it was great to talk with you.

Editor’s note: WORLD has edited this transcript since its first airing to clarify that Attorney Mark Fiddler briefed the Supreme Court on child welfare, but did not participate in oral arguments, as was previously implied.

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