But on November 9, they found themselves in the Supreme Court chambers hearing justices and lawyers discuss their family’s situation: the adoption of a Native American child by a non-Native American family.
The Brackeens have no regrets, however, because they believe they are fighting the broad application of the Indian Child Welfare Act (ICWA) that they say does not serve the best interests of children.
ICWA was passed by Congress in 1978 “to protect American Indian children from widespread removal from their native families and communities and placement in non-Indian homes,” according to the Legal Information Institute.
“We feel in our personal experience that this law keeps Native American children in the foster care system longer than if they were not covered by this law,” Chad told The Texan.
“ICWA being dissolved or retooled will help Native children in the foster care system,” he added.
Right now, ICWA placement preferences list first a member of the child’s extended family; second a tribal foster home; third a foster home with Indian parents approved by a non-tribal authority; and fourth an institution for children approved by an Indian tribe.
These preferences rank above placing the child in a “non-conforming” home with a non-Native American family.
Notably, there are 11,000 Native American children in the foster care system in the United States and only 2,000 Native American foster care homes available.
In June 2016, the Brackeens’ son, A.L.M., was placed in their home at nine months of age. They were given little detail but were told he was a Native American child, part Navajo and part Cherokee, and that the placement would likely only be for a few months while a Native American foster family was located who could accept the baby.
A.L.M.’s biological family lives in the North Texas area and so the Brackeens facilitated regular visits with them, including with grandparents and cousins.
Each time they met with A.L.M’s caseworker, the Brackeens asked about the search for a Native American family, knowing a bond was growing between A.L.M. and them and their other children.
After a year in their home and with the parental rights of his biological parents terminated, the Brackeens began the process of adopting A.L.M.
His biological parents, grandparents, court-appointed special advocate, and attorney ad litem supported the adoption.
But less than a month before the adoption hearing, the Brackeens were notified that an unrelated tribal couple from Arizona was willing to accept A.L.M. into their home, taking him not only from the Brackeens with whom he had bonded but also from his biological family who lived nearby and kept in touch with him.
The judge ruled in favor of the Arizona couple based on the requirements of ICWA. The Brackeens said they were “devastated, crushed, and baffled.” They could not understand how this decision was in the “best interest of the child” as required by the Texas Family Code.
The Brackeens immediately filed an appeal, and the Second District Court of Appeals in Fort Worth issued an emergency stay that allowed A.L.M. to stay with the family he had lived with for most of his young life. Meanwhile, the couple in Arizona withdrew from the process.
They also filed a federal lawsuit in the Northern District of Texas challenging the ICWA, calling it a racially discriminatory policy that “places Indian children at risk for serious and lasting harm.” Several other families also joined as plaintiffs.
The State of Texas was also a party to the lawsuit alleging that ICWA and its regulations violate the anti-commandeering doctrine by intruding upon the State’s “sovereign authority over domestic relations in every child-custody proceeding.”
The anti-commandeering doctrine is based on the Tenth Amendment and prohibits the federal government from commandeering state resources for federal purposes.
When the tribal authorities consented by letter to their adoption of A.L.M. in January 2018, the Brackeens breathed a sigh of relief, knowing he was now officially their son.
But only a few months later in June, they learned that A.LM.’s mother had given birth to a baby girl, his sister Y.R.J.
Through a series of contacts, they learned that Y.R.J. had been removed from her mother and placed in the foster care system since she was two days old. The Brackeens’ case worker later admitted she had been instructed not to reveal the status of the baby.
The Brackeens had already been through a heated legal battle and had to honestly evaluate whether they were ready to possibly face another. Knowing it could be difficult, Chad and Jennifer decided to step in and fight to keep brother and sister together.
The Brackeens contacted the attorney ad litem requesting sibling visitation and not long after filed to adopt Y.R.J.
This time a distant relative from Colorado said she was willing to accept Y.R.J. into her home. The judge crafted a shared guardianship between the Brackeens and the great-aunt, with the Brackeens as primary custodians.
The federal lawsuit was amended to add the adoption of Y.R.J. to the matter.
In October 2018, U.S. District Judge Reed O’Connor ruled that portions of the ICWA were unconstitutional.
His ruling affirmed the State’s argument, writing, “The ICWA is structured in a way that directly requires states to adopt and administer comprehensive federal standards in state-created causes of action. Therefore, the Court finds that sections … of the ICWA violate the anti-commandeering doctrine.”
The “blanket classification of Indian children is not narrowly tailored to a compelling governmental interest and thus fails to survive strict scrutiny review,” O’Connor wrote about granting the Brackeens’ Equal Protection claim.
Appeals proceeded at both the state and federal court levels while Y.R.J. was growing and becoming more attached to her biological brother and foster family.
The state appellate court returned the case to the trial court to relitigate the question of custodianship and possession of Y.R.J.
The Fifth Circuit Court of Appeals heard the case en banc and issued a lengthy opinion with several holdings in favor of the Brackeens.
In February 2022, the Supreme Court granted the petition for writ of certiorari, meaning it would hear the case.
Oral arguments held before the court on November 9 lasted three hours, with the justices posing many questions about the legal issues in the case.
Chief Justice John Roberts asked several questions related to the ICWA standards as compared to the state’s “best interest of the child” standard.
“So does that [ICWA] priority displace the state court, state adoption agency, determination of the best interests of the child?” he asked U.S. Deputy Solicitor General Edwin Kneedler.
Justice Brett Kavanaugh called the equal protection issue “difficult,” balancing “the great respect for tribal self-government for the success of Indian tribes with recognition of the history of oppression and discrimination against tribes and people” against “the fundamental principle we don’t treat people differently on account of their race or ethnicity or ancestry.”
With regard to the State of Texas having standing, or a stake in the case, Justice Clarence Thomas asked for an explanation. Texas Solicitor General Judd Stone answered that, at the very least, Texas risks losing $410 million in Social Security funding tied to the ICWA regulations.
The newest Supreme Court justice, Ketanji Brown Jackson, expressed concern about the impact of the “relatively new anti-commandeering principle.”
Several of the justices queried the lawyers about the breadth of congressional power under Article I to regulate Indian affairs.
“It was encouraging that the justices were well-versed on the issue,” Chad commented about the oral arguments, adding that he appreciates the issue “getting the attention of the brilliant legal minds” to help create a law that is in the “best interest of the child.”
Jennifer was glad “for them to hear that this is not just one random family that’s upset, but that this is happening to lots of people.”
Both Chad and Jennifer were impacted by the “hypothetical” children spoken of by the justices and lawyers.
“Our child is not hypothetical,” they both emphasized.
Meanwhile, in December, the Brackeens are facing another hearing to decide if Y.R.J., who is now four and a half years old, can continue living with them as she has since she was an infant.
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Kim Roberts
Kim Roberts is a regional reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.
