The couple reveals the battle for Native American adoption at the Supreme Court
Chad and Jennifer Brackeen, a white couple from Texas, never imagined that expanding their family by adopting Native American children would lead them all the way to the Supreme Court.
But that’s where the 42-year-old parents from outside Fort Worth found themselves Wednesday as lead plaintiffs in the federal lawsuit challenging the constitutionality Indian Child Protection Act — a law passed by Congress in 1978 that prioritizes the placement of Native American children in foster or adoptive homes with tribal relatives.
In June 2016, the Brackeens first took a nine-month-old boy, identified in court records as ALM, into their home as a foster child. It was a baby who appeared “scared and confused,” Jennifer and Chad told The Post. But because the baby had a Navajo mother and a Cherokee father, state adoption officials told the couple she would likely only be in their home for a few months.
The Brackeens then tried to formally adopt the “kissing and thriving” boy in June 2017 after both of his biological parents terminated.
“We were the only parents he knew,” the couple told The Post. “Although we do not share his legacy, we have learned to accept him, encourage and cherish him and his legacy. It was in his best interest to stay in our family.”
The Brackeens later learned that Navajo Nation social workers had found an unrelated tribal couple from Arizona who were the preferred placement for the boy. Despite expert testimony about his devotion to Jennifer and Chad, a Texas judge ruled in favor of the tribe.
“With just 2 days notice, we were told that our son would be leaving our family forever,” the Brackeens said. “This is where we felt the full weight of the flaws in this law.”
The Texas couple received an emergency stay under a judge’s order and continued to file a federal lawsuit that is now being heard before the Supreme Court. Navajo Nation tribal officials later approved the adoption on Jan. 8, 2018 — “a day to celebrate” for the Brackeens, they said.
But the family’s adoption saga took another twist in June 2018 when ALM’s biological mother gave birth to his half-sister, identified in court documents as YRJ Jennifer and Chad filed for custody, arguing that keeping the siblings together would be best for them, but the Navajo Nation requested that custody go to the girl’s great-aunt who lived on the reservation.
A Texas judge ruled that the Brackeens would have primary custody, but they had to take the girl to the Navajo reservation for extended summer visits. A state appeals court later ordered a new trial when both sides appealed the ruling.
The Brackeens insist the child welfare law meant to protect Native American children, including the now 4-year-old girl, is “outdated” and does not prioritize her best interests.
“It’s extremely important for our children and Native children across the country,” Chad Brackeen said of the high court’s ruling in the case. “We believe that the law should be revised in a way that will benefit the best interests of all children.”
The Brackeens are not in danger of losing custody of their adopted son, now 7, but the Supreme Court’s decision in Brackeen v. Haaland — expected sometime next spring — could affect his half-sister’s final placement. A trial in Texas family court regarding the girl’s adoption is scheduled for December.
“As parents, of course, we’re concerned because this is our family and the results of this could drastically change our family,” Jennifer Brackeen, an anesthesiologist, told the Post. “But we’re trying to stay optimistic because we’re not ready to face the consequences if we’re not successful.”
Chad, clearly upset by the prospect, said he was “hopefully optimistic” that the family of six, including two biological sons aged 13 and 11, would remain intact.
“I don’t think anybody could prepare,” he said of losing custody of the child who had lived with him since infancy. “It would be a shock to our family.”
Nearly 500 of the 574 federally recognized tribes want the Supreme Court to uphold ICWA, and 23 attorneys general, including New York’s Letitia James, have announced support for the law in filing filed in August.
The bipartisan coalition also rejected the Brackeens’ claim that ICWA “impermissibly classifies individuals on the basis of race” in violation of the Equal Protection Clause of the Fourteenth Amendment.
But Chad said his family’s experience shows that ICWA — which requires state courts to try to keep Native families together — harms the very children it’s designed to protect and risks removing them from “loving” homes where they’ve already bonded with adopted families.
“There is a law that affects us and puts at risk the established relationship and attachment and the loving home that our children are in because of their Indian heritage,” he said. “Family and heritage are important for a child, but not at the expense of constantly breaking bonds and attachments.”
Jennifer insists that it would be inhumane to separate YRJ from her family, especially her half-brother.
“As a mom, the bottom line for me is that it’s cruel to throw a child out of the house after they’ve grown close and formed a family and see us as their mom and dad,” she said. “We’re trying to take it one day at a time, which is what we’ve been trying to do for the last five years.”
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