Indian Child Welfare Act
Jennifer and Chad Brackeen are challenging the Indian Child Welfare Act in the U.S. Supreme Court. (Provided)

Efforts to overturn the federal Indian Child Welfare Act in court might not be entirely effectual owing to state-based laws that impose similar requirements in at least nine states, including Oklahoma, according to some observers.

Cherokee Nation Deputy Attorney General Chrissi Nimmo said state statutes can provide Indigenous children and their families protections even if ICWA is ruled unconstitutional. 

“I think you will see tribes starting to put more effort (…) to strengthen state ICWA laws as a way to protect Indian kids, their families and tribes,” Nimmo said.

The law was passed in 1978 to address the long history of forced removal of native children from their families and tribes. It requires that priority be given to tribal citizens when a Indigenous child is up for adoption.

The fate of the federal law is currently subject to an appeal to the Supreme Court by a Fort Worth couple, who were foster parents of a Navajo child and are challenging the constitutionality of the law. Supported by Texas, Indiana and Louisiana, the couple argues that the law uses race-based criteria in violation of their constitutional rights under the 14th Amendment. 

Gaylord NewsThis story was reported by Gaylord News, a Washington reporting project of the Gaylord College of Journalism and Mass Communication at the University of Oklahoma.

In 2017, Jennifer and Chad Brackeen sought to adopt a Navajo child they’d been fostering, but the adoption was blocked by ICWA provisions when the child’s tribe identified a home within the Navajo Nation where the child could go. 

With help from corporate lawyers and the Texas attorney general, the couple fought the Navajo Nation and were allowed to adopt the child. In October 2018, the Brackeens filed a federal lawsuit on grounds of racial discrimination, arguing that ICWA made it harder for them to adopt the child. 

Cherokee Nation of Oklahoma, Oneida Nation of Wisconsin, Morongo Band of Mission Indians of California and Quinault Indian Nation of Washington are all seeking to block the effort to overturn the ICWA statute.

Nimmo said in the unlikely scenario ICWA is overturned because it is race-based, the ruling would impact state ICWA laws since states can’t treat people differently based on race. 

But if the court allows its own anti-commandeering argument to stand, it wouldn’t prevent states from passing or altering their own ICWA statutes, regardless of the outcome for the federal statute. (Anti-comandeering doctrine restricts the federal government from giving orders to state governments.) 

“The Indian Child Welfare Act is one of the most important acts of external sovereignty a tribe can engage in,” said Claudette Grinnell-Davis, who is a University of Oklahoma professor. 

Grinnell-Davis is studying, with help from a Robert Wood Foundation grant, how Nebraska’s ICWA statute has improved Nebraska’s child welfare system as it relates to Indigenous children. Grinnell-Davis said the research is not only timely because of the Brackeen case but will be the largest-scale attempt ever to evaluate the effects of ICWA.

An Oklahoma Department of Human Services (OKDHS) report released in September of 2020 said 7,774 children were in Oklahoma foster care, with 322 in tribal custody. Of the 7,452 in state custody, 2,567 were Indigenous. 

Oklahoma Human Services data indicated more than 80 percent of Oklahoma’s foster and adoptive homes are not Indigenous, but the likelihood of having an Indigenous child placement was high.

Nine states have their own versions of the federal ICWA. Oregon passed ICWA legislation in July 2020. Oklahoma’s was adopted in 1982.

Washington state, Iowa, Minnesota, Michigan, Nebraska, Wisconsin and Louisiana also have state ICWA statutes.

ICWA is known as the “gold standard” in federal child welfare policy, said David Simmons, who is the National Indian Child Welfare Association’s director of government affairs and advocacy.

The nine states’ statutes previously address everything the federal ICWA statute does, but those are just the comprehensive state statutes, Simmons said.

Closer to 25 or 30 states have language in their existing child welfare systems mentioning or supporting ICWA provisions. Texas, he said, is one.

“States and tribal nations are realizing there is much more benefit and power in working together on these cases than there is to not,” Simmons said, adding that 34 states have federally recognized tribes. “I continue to see it as a sign of increased support and adoption of ICWA’s principles in state child welfare law.”

Kathryn Fort, a lawyer representing the four tribes that have petitioned the court in the case, said she anticipates more tribes signing onto amicus briefs to support ICWA​, joining those who have already done so this fall.

Cherokee Nation journalist Rebecca Nagle investigated underlying custody cases and major players in the effort to overturn ICWA in season two of her podcast, “This Land.”

“Non-relatives were chosen over relatives in half of the cases,” Nagle said. “In one case, non-relatives were chosen over another Navajo family.”

Nagle said there’s an “odd cast of characters” fighting ICWA. 

The Brackeens sought legal help from corporate law firms who typically represent companies such as Walmart, Chevron and Amazon, rather than family law.

“These cases are really kind of a Trojan horse for other money interests,” Nagle said. 

Nagle said one issue with ICWA is there are no consequence to state agencies when they aren’t compliant with its laws.

“Who won custody in a lot of these cases really came down to who had more money and legal resources,” Nagle said. 

Former Oklahoma State Sen. Connie Johnson, a Democrat from Holdenville, said she’ll be “livid” if ICWA is overturned. Johnson is a Black woman of Choctaw descent who is running for governor of Oklahoma.

“I think it’s pretty arrogant for these families seeking to repeal ICWA to disregard indigenous culture and the importance of children growing up in their culture,” Johnson said.