Native American adoption dispute puts decades-old statute on defensive

The effort that Indiana joined to overturn the Indian Child Welfare Act, which seeks to preserve Native American families, is headed for another round in appellate court as the 5th Circuit Court of Appeals prepares for a rehearing en banc following a lower court’s ruling that the 40-plus-year-old federal statute was unconstitutional.

At the center of the dispute in Brackeen v. Bernhardt, 18-11479, are Chad and Jennifer Brackeen, a Texas couple trying to adopt a foster child, A.L.M. After caring for the toddler for more than 16 months, the Brackeens started adoption proceedings with the support of A.L.M.’s biological parents and his paternal grandmother, according to court documents.

However, the youngster was identified as an “Indian child” under the Indian Child Welfare Act, which gave the child’s Indian tribe the right to intervene. As the adoption continued, the Navajo Nation notified the state court it had located a potential alternative placement for A.L.M. with nonrelatives in New Mexico.

The Brackeens argued in family court that good cause existed to depart from ICWA’s preference for placing A.L.M. with an Indian family. Namely, the biological parents supported the Brackeens’ adoption petition, and a psychologist testified that if A.L.M. was removed from his foster home, he was four to six times likelier to experience the trauma he endured before he was placed in foster care.

In August 2017, the Texas family court denied the Brackeens’ petition for adoption.

A few months later, the Brackeens, joined by the state of Texas, filed a lawsuit in federal court, arguing ICWA violates the Equal Protection and Due Process clauses of the Constitution, along with guarantees of states’ rights as provided by the 10th Amendment.

An amended complaint was filed in December 2017, and the plaintiffs had expanded to include the states of Louisiana and Indiana. In October 2018, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas handed the plaintiffs a victory, agreeing that ICWA violated the Constitution.

Any celebration by the plaintiffs was short-lived. A panel from the 5th Circuit reversed the lower court’s decision in August 2019 and held, in part, that counter to the district court’s holding, ICWA’s definition of “Indian child” is not a race-based classification but a political classification subject to rational basis review.

Chief Judge Priscilla Owen split from the majority’s view that ICWA does not force state officers or agents to implement federal programs. She argued the federal act requires states to maintain records of each placement of an Indian child and assist in the enforcement of ICWA.

The 5th Circuit granted the plaintiffs’ petition for a rehearing and has scheduled oral arguments for Jan. 22. Indiana Attorney General Curtis Hill’s office was scheduled to submit its brief after Indiana Lawyer deadline.

‘Existing Indian family’

Indiana is home to only one federally recognized tribe, the Pokagon Band of the Potawatomi Indians. But data from the Indiana Department of Child Services shows the state has had children in foster care who are members of the Cherokee Nation, the Oglala Sioux Tribe, the Choctaw Nation of Oklahoma, the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana and several others.

Conversely, Indiana is one of the few states still applying the “existing Indian family” doctrine. This philosophy was created by the Kansas Supreme Court in 1982, according to Cassandra Erler’s “Excepted Out of Existence: The Existing Indian Family Exception as a Violation of Procedural Due Process and a Destructive Tool Against Tribal Communities,” published in the American University Journal of Gender, Social Policy and the Law. Essentially the Kansas court held that the mandate to preserve Native American children’s heritage did not apply to minors who were not part of any existing Indian family unit.

Indiana appellate courts last applied the exception in 2010 in In Re the Adoption of D.C., et al; J.C. v. J.C., 49A02-0909-CV-862. There, the Indiana Court of Appeals upheld the adoption of 11- year-old D.C. by his stepfather. The boy’s biological father contested the proceeding, claiming he was a member of the Sitka Tribe of Alaska and, therefore, the minor child was subject to ICWA.

Noting the Indiana Supreme Court introduced the existing Indian family exception in Matter of Adoption of T.R.M., 525 N.E.2d, 298, 303 (Ind. 1988), cert. denied, 490 U.S. 1069 (1989), the appellate court declined to take the biological father’s invitation to overturn the doctrine.

The court also declined to consider the father’s argument that he and D.C., along with an older sibling, J.C., constituted an existing Indian family because of the father and J.C.’s tribal enrollment and D.C.’s eligibility for enrollment. The court noted D.C. had never lived with the biological father and, thus, had never lived in an Indian home from which he could be removed.

Now-retired Judge Michael Barnes concurred, but he wrote a separate opinion to point out Indiana’s minority position in applying the “existing Indian family” doctrine.

Barnes noted the case on which the Indiana Supreme Court relied, In re Adoption of Baby Boy D., 742 P.2d 1059 (Okla. 1985), cert. denied, had since been overruled by In the Matter of Baby Boy L., 103 P3d 1099, 1108 (Okla. 2004). The latter case held that the existing Indian family doctrine was “no longer a viable doctrine” in Oklahoma.

“We do not have the authority to overrule our supreme court, and we must apply the existing Indian family doctrine in this case,” Barnes wrote. “However, given the controversy surrounding the existing Indian family doctrine, I encourage our supreme court to revisit its applicability in Indiana.”•