FORT WORTH, Texas >> The 3-year-old boy who could upend a 40-year-old law aimed at protecting Native American children barreled into the suburban living room, merrily defying his parents’ prediction that he might be shy. He had a thatch of night-black hair and dark eyes that glowed with mischievous curiosity. As he pumped a stranger’s hand and scampered off to bounce on an indoor trampoline, his Superman cape floated behind him, as if trying to catch up.
Zachary, or A.L.M. as he is called in legal papers, has a Navajo birth mother, a Cherokee birth father and adoptive parents, Jennifer and Chad Brackeen, neither of whom is Native American. The Brackeens are challenging a federal law governing Native American children in state foster care: It requires that priority to adopt them be given to Native families, to reinforce the children’s tribal identity.
Last fall, a federal judge ruled in the Brackeens’ favor, declaring that the law, the Indian Child Welfare Act, was unconstitutional — in part, he said, because it was based on race.
The case is now before a federal appeals court. Whoever loses is almost certain to ask the Supreme Court to hear it.
The lower-court ruling has shaken the 573 federally recognized tribes, who fear a reopening of the wound that the 1978 act was created to heal: the removal of Indian children by social workers, who would relocate them in missionary schools and with white adoptive families.
Legal scholars say that if the rationale for striking down the law survives, it could also threaten laws that guard tribal casinos and water and land rights.
And the potential ramifications reach far beyond the tribes: If the law falls for race-based, equal-protection reasons, legal experts say, many affirmative action practices might become vulnerable as well.
Ultimately, the dispute is something of a modern Solomonic parable, with two mothers — the tribe and the state — fighting over who has claim to Native American children.
“Culture is important but attachment is, too,” said Jennifer Brackeen, whose efforts to adopt Zachary (his middle name, which the Brackeens asked to be used for this article to protect his privacy) after he was placed in her foster care were nearly thwarted a year later when the Navajo tried to move him to an adoptive tribal family.
Kandis Martine, an assistant attorney general of the Navajo Nation, said that while it might seem painful to remove children from foster homes where they had lived for months, the tribes were thinking about the long trajectory of the children’s lives.
“We wonder what will happen to these children down the road and how this will all be explained to them,” she said. “How will they be told that their tribe and their family fought for them, but this non-Native, nonrelative family won?”
The Brackeens originally filed the lawsuit because language in the act suggests that Zachary’s adoption might be revocable for two years. Now they have fresh cause: When Zachary’s 11-month-old half-sister was born, both she and her biological mother tested positive for methamphetamine, and the baby was immediately placed in state foster care with another Texas family. The Brackeens want to adopt her, too.
The Navajo Nation, invoking the child welfare act, opposes the couple. Last month, during a tense 10-hour hearing in a Texas family court, the Brackeens fought the tribe as well as the baby’s Navajo relatives, who had driven to Fort Worth from the reservation in Arizona, intending to return home with her.
‘A CHARMING LITTLE BABY’
The Brackeens, both 39, are self-conscious about their material success: a large brick home on an acre, with pool, greenhouse, zip line and a kitchen big enough for Zachary and their two biological sons, 10 and 7, to zoom around it on Rollerblades.
Jennifer Brackeen, an anesthesiologist, works 7 a.m. to 2 p.m. at a day-surgery center. Her husband is a civil engineer turned stay-at-home father and portrait photographer. Their schedule is jammed with sports, music lessons, family hikes and walking their two dogs.
They attend the evangelical Church of Christ twice a week and fill their home with plaques of prayers and inspirational sayings.
When their younger son was 3, they began asking God how they could serve a higher purpose. One way to “rectify our blessings,” they thought, was to foster children and, eventually, to adopt one.
Zachary was the seventh child to be removed by authorities from Jackie, his birth mother, now 33, who, according to court testimony, grew up on the Navajo reservation and later moved to Texas. She has long struggled with drugs.
In June 2016, Zachary was placed with the Brackeens as foster parents. He was 10 months old.
The Indian Child Welfare Act covers Indian children who live outside reservations, which puts them under state jurisdiction. Its goal is to unite them with an Indian family.
State workers must show a judge that they are making “active efforts” to reunify a family — providing resources like drug treatment and therapy. The tribe must have a voice in the proceedings. If a birth family is deemed unfit, the tribe can look for an extended family, then an unrelated tribal family and, finally, for another tribe.
A judge can reject the tribe’s candidate but only for “clear and convincing” reasons, a high bar.
When Zachary arrived in their home, the Brackeens were told they could not adopt him. For the first six months, he had visits with his paternal Cherokee grandparents. His parents showed up for the supervised visitations sporadically, and then not at all. Jackie spent time in jail.
Both parents’ rights were eventually terminated, and in May 2017, the Brackeens decided they wanted to adopt Zachary.
“We had tried not to get attached,” Jennifer Brackeen said. “But if you’ve had a charming little baby living with you for more than a year, that’s hard not to do.”
Jackie said she wanted the Brackeens to adopt her son, and his appointed court advocates testified that he should remain with the couple.
But Navajo social workers said they had found an unrelated tribal couple in New Mexico to adopt the boy. A Texas judge ruled for the tribe, citing the child welfare law. The Brackeens had three days to pack up Zachary and say goodbye.
“How do we explain that to him?” Chad Brackeen said, his eyes welling with tears. “He had already been taken from his first home, and now it would happen again? And the only explanation is that we don’t have the right color of skin? How do we explain that to our own children? We’d done nothing but sign up to do good. We were devastated.”
They obtained an emergency stay of the judge’s order. The tribe ultimately backed out, and in January, the Brackeens finalized the adoption.
As if on cue, Zachary danced around Chad, who swung him up in the air as the boy shouted gleefully, “He’s my Da-da!”
Through a Facebook group, other families described hitting roadblocks while trying to adopt Native American babies.
“We realized that what happened to us wasn’t random,” Jennifer said. “We wanted to make a change for the future.”
The Brackeens agreed to be plaintiffs in a case brought by Texas, Louisiana and Indiana. The Trump administration and five tribes are defending the law.
While the case advanced in court, Jackie gave birth last June to Zachary’s half-sister. State social workers informed the Navajo but not the Brackeens. They placed the baby with another Texas foster family and began “active efforts” at reunification with Jackie.
“The tribe doesn’t owe us anything,” Chad Brackeen said, as Zachary tucked into his lap, getting some shoelace assistance. “But our son? That’s his sister. That’s not right.”
They petitioned the district court that she be placed with them.
“How can it not be in his best interest,” Chad said, “to grow up with a sibling who looks more like him than we do, who knows what he’s gone through and who shares his story more than anyone else?”
Some scholars cite the opening of the Carlisle Indian Industrial School in Pennsylvania in 1879 as the beginning of the Indian children’s diaspora. Students were pulled from reservations across the country to fill the boarding school. Its founder was Brig. Gen. Richard H. Pratt, who became infamous for proclaiming, “Kill the Indian and save the man.”
Forced removal and conversion of Native children continued for decades. Often, Native families were not told where the children had gone. From 1958 to 1967, the federally funded Indian Adoption Project placed nearly 400 Indian children from Western states with white families nationwide.
In 1978, Congress passed the Indian Child Welfare Act to protect “the best interests of Indian children” and to promote the stability of tribes and Indian families.
At the time, studies showed that 25% to 35% of American Indian children were being placed in foster homes, with 85 percent of those outside their tribal communities.
Some studies have shown that social workers removed many Indian children not for neglect or abuse, but because of the household’s perceived poverty. Researchers noted that while Native Americans are disproportionately poor, the ways they often survive — a cash economy, seasonal work, child care with relatives — are norms that elude state workers.
The 1978 act reinforced guardrails to prevent social workers from reflexively removing Indian children and judges from terminating parental rights.
No national databank tracks the law’s cases. Indian children still enter foster care at disproportionately high rates. But in districts like Minneapolis and Los Angeles, which have judges, lawyers and social workers trained in Indian cultural sensitivities, the law has significantly helped reunite families.
Indeed, the pillars of the law — giving services to shattered families to avoid prolonged foster care; placing children with relatives rather than strangers; acknowledging cultural identity — have been called a “gold standard” by leading child welfare agencies.
In 2015, the Goldwater Institute, a conservative think tank in Arizona with donors who have ties to the Koch brothers, put the law on its roster of targets. Goldwater argued in about a dozen cases that the act violated the equal protection rights of Indian children because it was more difficult to permanently remove them from abusive homes.
The Texas attorney general and the Brackeens adapted that theory, and in October it was successful: Reed O’Connor, a federal judge for the Northern District of Texas, ruled the act unconstitutional. The act violates equal protection rights, he said, adding that Congress could not order a state to apply federal law in its own domestic relations case.
If the Supreme Court takes the case, the act’s future is uncertain. Justice Clarence Thomas has already indicated he thinks it may be unconstitutional. Justice Brett M. Kavanaugh may view the act with skepticism, too: When he was in private practice, he helped write a brief whose argument became a model for the Supreme Court in a 2000 case that struck down a local Hawaiian election reserved for indigenous people.
Which raises the question: Is the Indian Child Welfare Act based on race?
The act covers a child who is either a tribal member, or is the biological child of a tribal member and is eligible to be one.
Each tribe has its own eligibility criteria, somewhat analogous to a nation’s citizenship requirements. The Constitution’s commerce clause and centuries of treaties and federal law consider tribes political, not racial, entities.
A lawyer for the Brackeens, Matthew D. McGill, says the act wrongly gives tribes custody of children who should be under state authority.
“That baby was born into the world in Texas and because of her mother’s troubles, she was placed in Texas foster care,” he said, referring to the little girl the Brackeens want to adopt.
The act, he continued, “was about stopping unjustified breakups of Indian families, but this child has never lived in an Indian family.”
When the baby was about 6 months old, the Navajo located a relative who would like to adopt her: Alvetta James, aunt to Jackie the birth mother, great-aunt to Zachary and the baby.
Her two-bedroom house on the Navajo reservation in a remote part of Arizona is at the base of a mountain, where children, aunts, uncles and grandparents hike and forage for plants. A daughter of a medicine woman, James, 55 and divorced, is a traditional Navajo homemaker: She cares for her ailing brother and mother, as well as her sheep, goats, herding dogs, chickens and horses. Her five adult children — one a weaver and an officiant at Navajo ceremonies — help with her bills. She also receives food stamps.
Four of Jackie’s other children live 40 minutes away with James’ sister and visit James twice a week. Last month, the eldest, Alexandria, 17, accompanied James on a 16-hour drive to Fort Worth to meet the baby and to face a family court judge who would decide whether she could bring her home.
James walked into the Texas courtroom wearing a Navajo skirt, moccasins and turquoise jewelry. Although she had taken foster parenting classes to demonstrate her readiness, when she took the stand, she seemed intimidated. Navajo, not English, is her first language. She seemed uneasy looking interrogators directly in the eye, which the Navajo believe is rude.
A lawyer for the Navajo asked, How was the visit with the baby?
“She is adorable, she is happy,” whispered James, tearing up. “Alex interacted with her. The four siblings want little sister to come back now.”
Each child had written the baby a welcome letter, she said.
“Why do you want her?” the lawyer asked.
She looked taken aback, as if the answer were obvious.
“I love kids,” she replied. “And when I saw her picture, I started loving her.”
The courtroom was unusually full for a foster care custody trial: Chad and Jennifer Brackeen and their lawyers; the Navajo and theirs; the baby’s lawyer; a lawyer for state child protective services; and a lawyer for Jackie, who did not show up.
Under the Indian Child Welfare Act, the baby would have gone to the Navajo, absent a glaring problem. But in March, the family court judge in the case, Alex Kim, had echoed the federal judge and said the act violated the state’s constitution. He said he would instead apply the Texas family law standard of the best interest of the child.
Celeste Smith, a social worker from the Navajo Nation who supervised James’ home study, took the stand, hair pulled back in a Navajo bun.
“Our Navajo children are sacred to us,” Smith said. “We have our traditions, our ceremonies and our language handed down to our children. We don’t want to lose that.”
She listed the first laugh ceremony, the blessing way ceremony and the kinaalda, the Navajo puberty ceremony for girls — a four-day ritual with food and extended family to celebrate a girl’s entry into womanhood. The girl runs three times daily. “Every day a little further — that tells you to keep going, keep going, that you don’t give up,” she explained.
Chad Brackeen, in a suit, took the stand. He spoke about Zachary’s attachment to the baby, whom the family had visited.
Zachary asked daily about her, he said. “We feel strongly that these two children should grow up together and support and love each other,” he told the court.
The lawyer for the Navajo asked Chad whether he had learned anything in court about James that gave him pause.
Yes, he said. He had a few concerns.
He was thinking of the baby “not as an infant living in a room with a great-aunt but maybe as an adolescent in smaller, confined homes,” he said. “I don’t know what that looks like — if she needs space, if she needs privacy. I’m a little bit concerned with the limited financial resources possibly to care for this child, should an emergency come up.”
By early evening, testimony concluded.
The state’s lawyer stood. Even without direction from the child welfare law, she said, state regulations give first placement preference to a relative. That would be James.
After a brief recess, Kim emerged with his ruling. Chad Brackeen clasped his hands and bowed his head. Smith, the social worker, gripped James and Alexandria.
The tribe and the Brackeens would share custody, Kim declared, but the Brackeens would have primary possession.
This summer, the judge continued, the Brackeens must take the baby to spend a week with James. Next summer, two weeks. The following, three. She would eventually spend 42 days each summer on the reservation. They must also share holidays like Thanksgiving and Christmas.
Kim said his Korean-born grandfather and father had understood that by coming to the United States, their offspring would lose parts of their heritage: “But that’s part of the decision we make to immigrate to other cultures and countries.”
Smith fixed him with a stony gaze.
He hesitated. “Ms. Smith, certainly your ancestors did not have the choice necessarily of the lands and territories that they live in,” he said. But, he continued, Jackie did. She had moved away from the reservation, making that choice “for herself and her descendants.”
Culture played a role in his ruling but not finances, he said. He favored placement with the Brackeens because the baby was closest in age to Zachary.
“I know that there’s disappointment in here and certainly surprise,” he said, “and so you may not agree with my decision, but hopefully you understand why.”
Both sides simply looked stunned.
So much remains suspended.
The decision about the act’s fate from the 5th U.S. Circuit Court of Appeals is imminent.
The Navajo are appealing Kim’s custody order.
The case was a “perfect scenario” for the law, said Martine, the Navajo Nation lawyer. “We have a Native family willing and able to take a child, and we have to fight against a non-Native, nonrelative family for her — this is what ICWA is meant for,” she said, using the acronym for the Indian Child Welfare Act, pronounced ick-wah.
Two days after the hearing, the Brackeens took the baby girl home. Reached by phone in their car just before Mother’s Day, they sounded elated but also apprehensive about the way forward with people who, for years, had been adversaries.
They are weighing legal options. Their lawyer believes that the judge abused his discretion.
They have many questions. Will sharing custody with the tribe allow them to adopt her? What will those summer visits look like, for the little girl and the other Brackeen children?
“As a tiny child, we can’t explain this to her. It’s too traumatic,” Jennifer Brackeen said. “After one week she’ll feel like we abandoned her, too.”
But for the moment? Chad Brackeen directed his voice to the noisy back seat, where the baby and Zachary were strapped in. “Are you excited?” he asked.
“Yes!” Zachary shouted.
“Why?” his father asked.
“With baby sister!”
On the afternoon before Mother’s Day, the extended James family gathered in an aunt’s living room. They spoke sadly about Zachary and especially the baby, whom they had believed would be with them.
Tatum, a 15-year-old sister, picked up her ukulele. Mayson, 14, held the music — Queen’s “Love of My Life.” As Tatum’s pretty voice lofted the lyrics, many of the aunts, uncles, cousins and siblings began to weep:
“You will remember
When this is blown over
Everything’s all by the way —
When I grow older
I will be there at your side to remind you
How I still love you.”