WASHINGTON — After Jason Clifford and Danielle Clifford realized they couldn’t have children, they decided they would foster to adopt a child from their community.
A 6-year-old girl from the White Earth Band of Ojibwe was adopted by a couple in the Twin Cities. Her parents had lost parental rights to her after she used drugs.
The Cliffords cared for the child for 18 months before attempting to adopt her. The fight for custody was won by the maternal grandmother of the child, who had fought hard to get it.
The grandmother is a White Earth member and lives in Minneapolis. She was able to regain the child due to the Indian Child Welfare Act, a 1978 law that makes it harder to take children out of American Indian families.
The Minnesota custody case became part of a larger case, which has made its way to the Supreme Court. Next month, arguments will be heard at the Supreme Court over the constitutionality and validity of the Indian Child Welfare Act.
Brackeen, also known as Haaland v. Haaland has gained momentum for Indian County. Tribes fear that the Supreme Court will end their ability to supervise foster care placements for Native children. Tribes are also concerned that the Supreme Court’s decision in the case could go further and undermine their special relationship to the federal government, as well as stripping their sovereignty.
This case is of paramount importance to the nation’s tribes organizations, which include all the Minnesota tribes and almost 500 others from across the country. They have filed amicus briefs supporting the Indian Child Welfare Act.
It is both an emotional and legal issue. The law was passed by Congress to address the high number of Native American children being forced from their homes, and in particular from Native American culture. Witness testimony showed that the per capita rate of Native children living in foster care was almost 16 times greater than that for non-Native children.
Witnesses attested that nearly one-quarter (25%) of Indian children under the age of one in Minnesota were adopted in 1972 and 1971.
“Still dealing the trauma”
“The repeal of any of these provisions of Indian Child Welfare Act would signal that the federal policies of culture genocide have been reintroduced,” Angelique EagleWoman (director of the Native American Law Sovereignty Institute at Mitchell Hamline School of Law) said.
EagleWoman, who is Dakota and a citizen of the Sisseton-Wahpeton-Oyate, said her father and grandmother had been sent to non-Native boarding schools. These schools were created by religious groups and federal governments to educate Indian children, but also to encourage them to integrate into white society.
EagleWoman stated that Native American children were at risk of all types of abuse in boarding schools. These schools became day schools in the 1950s and 60s. She stated that the “kidnappings” of these children had an impact on their parents, aunts, uncles, and grandparents who were unable to stop them.
span style=”font weight: 400 They are still dealing with trauma,” EagleWoman stated.
In response to these concerns, Congress passed the Indian Child Welfare Act. The law requires that the tribe court first attempt to place an American Indian child with a family member. If this is not possible, the tribal court should first try to place an American Indian child with a family member. If they are not available, the child should be placed at a tribal institution.
“The statute stated that the child’s best interests were with the tribe.” EagleWoman added. It’s been attacked since it was passed .”
Adoption organizations and attorneys filed briefs to support white parents who want to adopt Native children. These included the Academy of Adoption and Assisted Reproduction Lawyers, who argued that the court should recognize a child’s fundamental right to a safe, permanent, and stable home and determine that such a right does not exceed the statutory rights and interest of the child’s tribe.
A variety of conservative organizations, such as the Goldwater Institute, urged the Supreme Court not to uphold the Indian Child Welfare Act.
EagleWoman, other tribal law professors, child psychiatrists, and 87 members – including Minnesota Democratic Senators – were present. Tina Smith, Amy Klobuchar, Tina Smith, and Representatives Angie Craig (D-2nd District) and Betty McCollum (D-4th District) all submitted briefs to support the law.
Smith stated, “I was proud to sign the bipartisan amicus brief to defend (the Indian Child Welfare Act) and urge the court to uphold tribal sovereignty and the federal government’s responsibilities to tribes.” “I was proud to sign the bipartisan amicus brief in defense of (the Indian Child Welfare Act) to urge the court to uphold tribal sovereignty span>
Danielle Clifford claimed that she was forbidden from discussing the case by a court order, but she stated that there was more to the story than what has been publicly disclosed. Lochlan Shelfer, Cliffords’ attorney at Gibson Dunn, declined to comment. The White Earth Band of Ojibwe also did not respond to emails and calls seeking comment.
The road to the Supreme Court
It was a complicated path for the White Earth custody case to reach the Supreme Court.
The Hennepin County District Court denied the Cliffords’ adoption bid and gave custody to the grandmother. In a Texas court case, the Cliffords were named plaintiffs by a couple whose adoption was thwarted by the Indian Child Welfare Act. The case also included the plaintiffs from Indiana, Louisiana, and Texas.
The Texas court sided for the plaintiffs. The federal government appealed to the New Orleans-based 5 th District Court of Appeals.
Initially, the court’s three-judge panel found that the Indian Child Welfare Act wasn’t, as plaintiffs claimed, unconstitutional because it was race-based. It was based on political considerations. The court also rejected the argument of the plaintiff states that the law “commandeered state agencies and officials to enforce federal laws.”
The appeals court found that the federal government only regulated the placement and adoption of American Indian children.
One judge requested an en banc ruling, which would allow all the 5th Circuit judges to weigh in. The case ended in a split decision, which was not favorable for either side.
The Justice Department, the Tribes, and individual plaintiffs, including the Cliffords, petitioned U.S. Supreme Court in September last year for review of Fifth Circuit’s decision.
All petitions were granted by the Supreme Court and consolidated into Brackeenspan styling=”font-weight 400 ;”>. Oral arguments will be heard by the court in this case on November 9.