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.
[image_caption]Angelique EagleWoman[/image_caption]
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.
In the Clifford’s case, either the government erred in not placing the child with her grandmother first, according to the law, or the grandmother was not awarded custody due to her own problems that disqualified her from being awarded care of a young child. If she had to “fight” to win custody, I’m betting it was the latter. The best interests of the child should ALWAYS be the deciding factor on who she lives with and nothing else.
EagleWoman’s claims are irrelevant if not simply nonsense. I too am Dakota and a tribal member of the Sisseton-Wahpeton-Oyate. My mother and uncle attended the Indian boarding school in Pipestone after their parents were given a CHOICE of whether or not to send their kids there. They had been attending the local one-room school house in Veblen, South Dakota where they were learning the three Rs, along with a dozen or so other kids from the area, white and Indian. They would walk the two miles to school every day, including the winter months, where the school marm may or may not decide to show up that day.
The Pipestone boarding school offered them the opportunity to learn a much broader curriculum including knowledge and skills that boys and girls could use throughout their life, such as cooking and sewing for the girls and farming and carpentry for the boys. The school was totally self-sustaining and grew their own food, milked cows and raised chickens. Plus they participated in sports with teams that played against other schools from around the area. In other words, the Pipestone school offered things that the little one-room school house could not. Pity the local white kids who had no choice. Neither my mother nor my uncle ever mentioned any mistreatment as we see in press accounts about Indian boarding schools and always spoke of those days with fondness. To suggest that they were traumatized by the experience is nonsense.
I’m sure there were mistreatment at some Indian boarding schools, just as there is mistreatment at some of today’s government schools. But it certainly was not the universal experience you’ve been told about in the press.
What ever the outcome of this case, we need to stop treating these kids as ping pong balls in larger fights
Moving grom one family to another is destructive to kids
Sometimes, social service agencies are quick to place–they can’t find phone numbers or the birth parent won’t provide them, etc.. Research shows young children can reattach and so the argument that is often used–it will damage them for life needs to be weighed against research that shows kids who are raised in their family usually do better(given there are no safety concerns). Add in the history, yes some had positive boarding school experiences, but many were abused. Also clearly the US tried to wipe away American Indian culture, that is the crux of ICWA law, to have children raised in the culture. Foster families sign up for exactly that–foster care and thankfully they do so, but there is no promise in foster care regarding adoption, it is clear–social services works to return the child back to parents or family–that is in the law. It is not about the foster parents, it is about the child.
Lisa, this was in the late 1920s. It’s not as if they were riding war ponies and hunting buffalo. My grandparents were farmers. They spoke Dakota to each other but never taught the language to their kids (my mother and uncle). They spoke English in the one-room school house, so I don’t know what part of Sioux culture they were deprived of.
Cultural education of any culture belongs in the home, taught by family members. It is not the function of the school system they attend during the school year. That’s true today as well. When I was in public school in St. Paul back in the 50s and 60s, Christmas was celebrated in schools. My high school choir finished 2nd in the state tournament by singing “Hallelujah Chorus” from Handel’s Messiah. That would not even be allowed today. I don’t hear anyone complaining that the Christian culture is no longer being taught in the public schools.
I think this case also raises the issue of prevention. The child had incompetent parents due to drug use. It would be interesting to see what efforts are taken to prevent American Indian children from being adopted. Ideally it would be great to put more efforts in maintaining the original family. Are more American Indian children adopted than other colors or skin tones? I have no clue.
It is also a difficult topic as American Indians are American citizens, but I am not sure they are Minnesotans as tribes do not need to honor state laws, Human rights, or tax requirements to my knowledge (source: Prior Lake judge). So does my background or my country come first in terms of adoption? Or should we look at what is best for the child? Or should we look at skin tones first? Or should we look at what country the child lives in (USA vs White Earth)? If child is transferred from White Earth nation to the United States, what impact does that have on custody? I believe the White Earth nation does not have a court system to deal with child custody so it falls on the United States courts- why? All these issues make this issue complex.
I wonder why the grandmother did not foster the child. Could that have been the first mistake?