WASHINGTON – After Jason and Danielle Clifford discovered they could not have children, they decided to become foster-to-adopt parents so they could help a child in their community.

In 2016, the Twin Cities couple took in a 6-year-old girl, a member of the White Earth Band of Ojibwe, whose mother and father had lost their parental rights due to drug use.

The Cliffords fostered the child for about 18 months and sought to adopt her. But the child’s maternal grandmother, who had battled to win custody of her granddaughter, eventually prevailed in the fight. 

A White Earth member who lives in Minneapolis, the grandmother was able to win back the child thanks largely to her tribe’s help and the Indian Child Welfare Act – a 1978 law aimed at making it more difficult to remove children from their American Indian families and communities.

This Minnesota custody fight became part of a larger case that has found its way to the Supreme Court, which will hear arguments next month over the constitutionality of the Indian Child Welfare Act. 

The case, known as Brackeen v. Haaland, has galvanized Indian County. Tribes are concerned the Supreme Court will nullify their right to oversee foster care placements in cases involving Native children. The tribes also fear the justices’ decision on the case could reach much further, undermining their special relationship with the federal government as well as stripping them of their sovereignty.

The case is a priority for the nation’s tribal organizations – including all of Minnesota’s tribes and nearly 500 others across the country – who have filed amicus briefs in support of the Indian Child Welfare Act. 

It’s an emotional as well as a legal issue. Congress passed the law in response to the disproportionately high rate of forced removal of Native children from their traditional homes and essentially from Native American cultures. Testimony showed that in some cases, the per capita rate of Native children in foster care was nearly 16 times higher than the rate for non-Native children. 

Witnesses testified that in 1971 and 1972, nearly one-quarter of all Indian children in Minnesota under one year of age were adopted. 

‘Still dealing with the trauma’

“The dismantling of any of the provisions of the Indian Child Welfare Act would signal a return to the federal policies of cultural genocide,” said Angelique EagleWoman, director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law.

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. Those schools were established by religious groups and the federal government to educate Indian children – but also to prod them to assimilate in white society.

EagleWoman said Native American children were vulnerable to every kind of abuse at the boarding schools, which in the 1950s and 1960s became day schools. She said the “kidnapping” of these children also impacted the children’s parents, aunts, uncles and grandparents, who were powerless to stop the removals.

“They are still dealing with the trauma,” EagleWoman said. 

Congress approved the Indian Child Welfare Act in response to those concerns. The law mandates that the tribal court first try to place an American Indian child with an immediate family member. If that’s not possible, the adoptive parents should be members of the tribe. And if those cannot be found, the child should be placed in a tribal institution.

“The statute established that the best interest of the child was with the tribe,” EagleWoman said. “But it’s been under attack since it was passed.”

Groups who filed briefs in support of the white parents who wanted to adopt Native children included adoption organizations and adoption attorneys, including the Academy of Adoption and Assisted Reproduction Attorneys who argued “the court should recognize a child’s fundamental right to a stable, safe, and permanent home and find that such a right exceeds the statutory rights and interests of the child’s tribe.”

A number of conservative organizations, including the Goldwater Institute, also urged the Supreme Court to overturn the Indian Child Welfare Act.

Meanwhile, EagleWoman and other professors of tribal law, child psychiatrists and 87 members of Congress – including Minnesota Democratic Sens. Amy Klobuchar and Tina Smith and Reps. Angie Craig, D-2nd District, and Betty McCollum, D-4th District – weighed in with briefs in favor of protecting the law.

“As a member of the Senate Indian Affairs Committee, my job is to make sure the federal government lives up to its legal, trust and treaty responsibilities to Tribes and Native people and upholds Tribal sovereignty,” Smith said. “ 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.”

Danielle Clifford said a court order prohibited her from speaking about the case, but she said there was “a lot more to the story” than has been made public. The Cliffords’ attorney, Lochlan Shelfer of the massive Gibson Dunn law firm, declined to comment, and the White Earth Band of Ojibwe did not respond to calls and emails seeking comment.

The path to the Supreme Court

The path the custody battle over the White Earth child took to reach the Supreme Court is complicated.

After the Hennepin County District Court rejected the Cliffords’ bid for adoption and the child’s grandmother was given custody, the Cliffords became plaintiffs in a Texas court suit brought by a couple whose adoption of a Navajo child was derailed by the Indian Child Welfare Act. A Nevada couple who fostered a child since birth were also plaintiffs in the case, as were the states of Texas, Louisiana and Indiana.

The Texas court sided with the plaintiffs, and the federal government appealed the decision to the New Orleans-based 5th District Court of Appeals.

Initially, a three judge panel of that court found that the Indian Child Welfare Act was not – as the plaintiffs had argued – an unconstitutional race-based law, but one based on political considerations. It also dismissed the arguments made by the states who were plaintiffs in the case that the law “commandeered” state agencies and state officials to enforce federal law.

The appeals court concluded that, under the Supremacy Clause, the federal government merely regulated the adoption and placement of American Indian children.

But one judge asked for an en banc decision, or for all of the judges on the bench in the 5th Circuit to weigh in. The result was a split decision that pleased neither side in the case.

In September of last year, the Justice Department, the tribes and the individual plaintiffs – including the Cliffords – petitioned the U.S. Supreme Court for review of the Fifth Circuit’s decision.

The Supreme Court granted all the petitions and consolidated them into Brackeen v. Haaland. The court will hear oral arguments in the case on Nov. 9.