Supreme Court decision disappoints adoptive families

As the son of an American Indian father and a white mother, Mark Fiddler grew up straddling two cultures. “I felt that tug of war,” he said. “Am I Indian or am I white?” Today he’s proud to be a member of the Turtle Mountain Band of Chippewa Indians, one of 574 tribes recognized by the federal government.

Now an attorney, Fiddler has litigated thousands of adoption cases, many involving the 1978 Indian Child Welfare Act. Congress passed the act to prevent Native American children from being taken out of their communities and placed in white families as a result of poverty or bias. Fiddler said he originally agreed with the measure because he identified with the cultural tension that Native adoptees experienced.

But his work as a lawyer changed his perspective. “I had more firsthand experience with how the system really works and what it does to children,” he said. Now he thinks the law gives tribal leaders outsized discretion over a child’s placement and prioritizes cultural preservation at the expense of healthy attachments.

Three of Fiddler’s clients, non-Native families wanting to adopt Native children, appealed to the Supreme Court when lower court decisions stalled their adoptions. The three couples’ adoptions were finalized by the time the case made it to the Supreme Court, though one couple, Chad and Jennifer Brackeen, was still in the process of adopting another native child.

In a 7-2 decision last week, the justices upheld the constitutionality of ICWA in their Haaland v. Brackeen decision. But legal experts and child welfare advocates are gearing up for another legal challenge in an ongoing attempt to reform the legislation.

“The original intent of ICWA was really good,” said Christie Mac Segars, senior vice president of domestic programs for Lifeline Children’s Services. She said many children were removed from their families who didn’t need to be removed. Often, those children were placed outside of the tribe, effectively removing the children from their native culture.

Since then, Congress and state legislatures have implemented more child welfare laws like the Adoption and Safe Families Act of 1997, Segars said, speeding up the foster care legal process and prioritizing family preservation and kinship placements. General child welfare practice now affirms that the goal of foster care is to reunify the children with their biological family or, if that isn’t possible, place them with extended family or someone in their community. ICWA creates an unnecessary delay, she said, a “pause in the child actually reaching permanency and having those connections that they need.”

Lifeline has a program that allows parents in crisis to place their children voluntarily with a Lifeline family on a temporary basis, keeping their children out of the foster care system. “We’re now in South Dakota,” Segars said. “[ICWA] is becoming a little bit more of a common thing that we interact with.”

ICWA regulations add time and paperwork if the parent of a child registered with a tribe wants to make an emergency placement with Lifeline. The regulations can also extend the time a child spends in foster care. Some of this delay involves checking whether a child is eligible for tribal membership, since ICWA is based solely on a child’s biological ancestry rather than his or her membership or cultural connection to a tribe.

“There is an adjudicated process within each [tribal] nation for them to determine if a child could be registered,” said Herbie Newell, Lifeline’s president and executive director.

More Native foster children enter the system than the number of available Native foster homes. In Fiddler’s home state of Minnesota, less than 2 percent of all children are American Indian, but they make up nearly a quarter of foster children. This means many Native children are still being placed with families of different ethnicities.

California foster parent Johnston Moore watched the policy wreak havoc in his own family. “I didn’t want to be an expert on the Indian Child Welfare Act,” he said. But when he and his wife began fostering in Los Angeles County, he was forced to become one. The act nearly prevented the adoptive father of seven from adopting his two oldest sons, who are biological half-brothers. When no biological relatives appeared at the brothers’ first court hearing in 2000, the placement appeared to be a fast-track adoption.

“Within three weeks they started calling us ‘Mom’ and ‘Dad,’” said Moore. “Their therapist was thrilled. They were doing really well.”

But later that year, the older boy’s paternal grandmother stepped forward and told the court the boys were descendants of the Iowa Tribe of Kansas and Nebraska Indians. The case was transferred to the county’s American Indian Unit and “suddenly everything changed,” Moore said. Iowa tribal leaders fought hard to remove the boys, who, until that point, had no idea they were part Native. Their biological mother’s father had enrolled her in the tribe as an infant, making her one-eighth Native and the boys, one-sixteenth. The custody battle dragged on for two years before the Moores were allowed to finalize the adoption. The boys, now 27 and 25, have joined their father in speaking out against the law, even participating in an episode of the TV show Dr. Phil.

In 2013, the Supreme Court gave custody of Veronica, a Native American 3-year-old, to her adoptive parents instead of her father, who was a registered member of the Cherokee Nation tribe. The child’s biological mother wanted to place her with the adoptive couple. Though the ruling was narrow, critics of ICWA hoped it would spur more litigation about the act. So when ICWA reached the high court again with the Haaland v. Brackeen case, Moore was optimistic. “I’m very, very disappointed,” he said of the court’s decision.

In last week’s majority opinion, the justices affirmed Congress’ power to legislate Indian affairs and ruled that ICWA is consistent with that power even though state law traditionally governs family relations. Fiddler said the decision leaves the door open for future lawsuits about whether Native children are treated differently than children of other races under ICWA. In his concurring opinion, Justice Brett Kavanaugh said the decision doesn’t answer “significant questions under bedrock equal protection principles.” He raised concerns about whether a child subject to ICWA may “be denied a particular placement because of the child’s race—even if the placement is otherwise determined to be in the child’s best interests.”

In case after case, Fiddler said he watches children’s emotional and psychological needs sidelined in favor of cultural preservation. “[ICWA] puts the thumb on the scale and says ‘culture trumps everything,’” he said. “That’s where the law for white kids says, ‘the best interests of the child.’”

The seven-member majority said the state governments and three adoptive couples challenging the act did not have sufficient standing to bring the lawsuit, since the parties appealed through federal courts instead of the state courts that decide adoption cases. Fiddler said the next step is appealing more adoption cases directly from state courts. “I expect those to be filed within months, if not weeks,” he told me in an email.

Moore hopes ICWA makes it back to court. But it could take years. “How many other children are going to be ripped out of strong homes in which they’re attached?” he asked. “When you start severing those attachments, it can damage a kid for life.”