The State Wants the Supreme Court to Limit Congressional Power over Native American Child Welfare Matters
Texas and two other states are asking the Supreme Court to invalidate a law that is supposed to make it harder for states to tear Native American families apart.
The state’s Radical Republican Attorney General Ken Paxton, who sued Interior Secretary Deb Haaland with Republican attorneys general from Indiana and Louisiana, told the Supreme Court that a lower court’s ruling that mostly upheld the act is wrong. The Supreme Court is scheduled to hear oral arguments in the case on Nov. 9.
“If allowed to stand, the Fifth Circuit’s rule would mean that Congress’s regulatory scope would be virtually limitless so long as an Indian is involved,” wrote Paxton, a Trumpist Big Lie election denial supporter who spoke at the Jan. 6, 2021, White House rally preceding the violent assault on Congress.
Congress passed the Indian Child Welfare Act in 1978 after decades of American Indian families being destroyed by child welfare agencies. Twenty-five percent to 35% of all American children had been separated from their families and placed in adoptive homes, foster care or institutions. About 90% of the children had been put in non-Indian homes.
The act is considered the gold standard for child welfare practices. Under the act, family courts should place Indian children who are removed from their parents with their extended family, other members of the child’s community including their tribe or other Indian families unless there is good cause not to.
The act also requires that Indian parents and tribes be notified of foster care proceedings or cases to terminate parental rights. It also requires that records be kept of where children are placed and be made available to the Interior Department or the child’s tribe.
Anyone seeking to put an Indian child in foster care or terminate a parent’s parental rights must satisfy a court that “active efforts” have been made to prevent the breakup of an Indian family and that those efforts have failed. An expert witness must testify that continued custody is likely to cause serious emotional or physical damage before an Indian child can be placed in foster care or before parental rights are terminated.
Chad and Jennifer Brackeen, a white evangelical Fort Worth couple who adopted
an American Indian boy and want to adopt his half-sister, are also plaintiffs in the suit. Attorneys for the Brackeens said that the act “disadvantages vulnerable children because of their ancestry.”
But in 2016, a federal judge appointed two outside experts, or special masters, to oversee reforming Texas’s foster care system for children who are in permanent state care after finding that “rape, abuse, psychotropic medication and instability are the norm.” Paxton, the plaintiff in the lawsuit over the Indian Child Welfare Act, tried to block the appointment of the two outside experts.
The lead plaintiff in the lawsuit over conditions in Texas’s foster care system was M.D., a girl who was 17 at the time of the trial. The state had 33,000 pages about her in its files, but no one in Texas’s foster care system knew what she looked like.
M.D. ran away and was assumed to be living on the streets in the Houston area at the time of the trial. Texas hospitalized her 11 times in psychiatric hospitals during the seven years she was in state custody and changed her home 19 times. M.D.’s medications included antipsychotics. She often took five or six medications at a time. Texas ignored a court order to reunify her with her mother.
“The special master shall be mindful that Texas does not need to provide a perfect foster care system,” wrote Judge Janis Graham Jack, a Clinton nominee. “just one that no longer violates the Constitution.”
The court-appointed monitors found in 2020 that Texas’s child welfare system continues to expose children in permanent state care “to an unreasonable risk of serious harm.”
Our nation’s Constitution prohibits unwarranted state intervention in the family and the family’s right to raise children following family culture, traditions and religion. Nine state courts have upheld the constitutionality of the Indian Child Welfare Act.
The District of Columbia and 25 states that are home to 86% of federally recognized Indian tribes submitted a brief supporting the act. Former foster children who are American Indian also submitted a brief in the case.
Autumn Adams said she lived with her aunt and her paternal grandmother on the Yakama reservation because of the Indian Child Welfare Act.
“My brother and I lived in a multigenerational home where my grandmother taught us the Yakama language, history and traditions,” Adams said. “We visited every Sunday with our biological mother and extended family at the longhouse, which gave me a lot of comfort and a strong sense of belonging as I grew up.”