Readers have rightly directed outrage at the leaked Supreme Court opinion, written by Justice Samuel Alito, that would eradicate reproductive rights in the United States. An aspect I find interesting, and haven’t heard remarked on very much, comes from a few footnotes in which Alito cites the role of adoption, and how that relates to another case the Supreme Court accepted in February, but has not yet heard.
Brackeen vs Haaland is a case out of the Fifth Circuit that challenges the Constitutionality of the Indian Child Welfare Act (ICWA). ICWA, which was passed into law in 1978, is a federal law that says (I’m paraphrasing) that when an indigenous American child is placed for adoption, members of that child’s tribe get “first dibs” before anyone outside the tribe may adopt them.
Taken at face value, many Americans bristle at a federal law that appears to discriminate based on race, and that is the argument made by the Petitioners in this case. It helps to get a bit of context:
From the first arrival of Europeans in North America, indigenous people were treated as less-than-human, or as enemies, and met with aggression by white colonizers. Their treatment by the United States government was genocide, plain and simple, though those in power studiously avoid that word.
Removing children from the tribe was always central to “Indian Removal.” Starting in the 17th century, children were forcibly taken from their families and tribes and brought to American Indian Boarding Schools, where they were intentionally kept from learning anything of their heritage or culture, taught to speak only English, converted to Christianity, and essentially brainwashed to act “white.”
These schools operated into the 1980s. Their harm to indigenous children — including the secret mass graves hidden on many school properties — was not truly appreciated until the late 20th century. When Congress passed ICWA, their more immediate concern was the Indian Adoption Project.
Starting in the 1950s, the federal government sought to solve “the Indian Problem” by encouraging adoption of indigenous children by white families, who would raise them away from reservations and “assimilate” them into “American” culture. The form this took was horrific: Indian families described white men driving onto reservations, parking near a group of playing children, grabbing one or two of them, and driving away. This was legal.
At the time ICWA was passed, estimates said as many as 35% of indigenous children born in the United States since the 1940s had been taken from their families for adoption, and 85% of those children were placed with adoptive parents outside their tribe, even when relatives were fit and willing to adopt them.
It was, in other words, a necessary measure — and to call it “racist” ignores the complex legal status indigenous tribes occupy within the United States. Tribes are nations-within-a-nation, granted limited self-governance and independence by a web of federal laws and statutes. In fact, ICWA does not concern itself with an child’s race, but rather with membership within a tribe — and the US Constitution explicitly grants Congress the right to legislate for the benefit of tribes.
ICWA has been law in the US for 44 years, nearly as long as Roe v Wade has been precedent. It has come under fire in recent years for two reasons:
- The number of available children is dwarfed by the number of Americans seeking to adopt. Since the early 2000s, foreign nations — especially China — have dramatically reduced or eliminated international adoptions to the United States. Americans seeking to adopt regularly find themselves waiting years. As a result, adoption placement agencies — a for-profit industry with a long history of shady business practices — find their revenue threatened.
- Bad-faith actors see an opportunity, as striking down ICWA would further erode the perilous rights held by tribes in the United States. If they can undermine tribal autonomy far enough, oil and gas companies can access deposits and build pipelines on tribal land, casino operators can purchase or remove competitors, and developers could access new land for white housing developments.
Which brings us back to Brackeen vs Haaland. In 2017, a white Texas couple (last name Brackeen) sought to adopt a Navajo child they had been fostering for several months. The child’s biological parents contested the adoption, but a Texas court terminated their parental rights. In accordance with ICWA, the Navajo nation stepped in to place the child with a Navajo family, but the Brackeens prevailed adopted the child.
Not long after, the Brackeens decided they would also like the child’s sister. Once again, the girl’s biological family challenged the adoption in court. This case wound its way through the court system, and in February the Supreme Court announced they will hear the case.
This is a highly condensed summary. It’s worth reading the full account to appreciate the many ways in which the indigenous family’s rights have been violated, and also how the adoption industry has found ways around ICWA — bribing mothers, for instance, to keep quiet about their child’s placement with a white family until the statute of limitations is up and the tribe’s rights expire.
Indigenous children are not alone in being targeted by the adoption industry. In March, as conditions in Ukraine deteriorated, an evangelical pastor and right-wing extremist, Matt Shea, showed up in Poland with 63 Ukrainian children he had abducted — he would say “rescued” — for adoption in the United States.
The adoption industry regularly sweeps in following wars and disasters to “rescue” children for white American families willing to pay. They argue these children will have a better home life and greater opportunity with their wealthy white families than they would in their native environment. It’s the same claim the Brackeens, and thousands of others, have made about removing indigenous children from reservations.
The adoption industry is closely tied to Christian, especially Evangelical, churches. Often, for-profit adoption agencies are headed by church leaders, who can “rescue” children under the auspices of their church, and then turn them over to the agency for placement with families, like the Brackeens, who are willing to pay. Indigenous children are especially vulnerable given their geographic accessibility, but since the late 1970s ICWA has offered some protection.
The Brackeens are joined in their lawsuit by dozens of white families in similar situations, as well as several states. On the other side, defending ICWA, are the federal government and numerous tribes.
Indian Law — as the United States calls it — has always been complicated and not clearly a partisan issue. Justice Ruth Bader Ginsburg, for example, was an icon for liberals but showed antipathy throughout her career for tribal rights. Given the conservative interest groups behind Brackeen, and the current makeup of the Supreme Court, the scales seem weighted against the tribes.
So how does this relate to Roe v Wade? Alito’s draft opinion runs nearly 100 pages, with dozens of pages of footnotes. In one, he claims that societal progress has rendered abortion obsolete, including “…that states have increasingly adopted ‘safe haven’ laws, which generally allow women to drop off babies anonymously; and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.”
This is the same argument raised by Amy Coney Barrett at oral argument in Dobbs v. Jackson Women’s Health, the case currently pending that appears to signal the end of Roe v. Wade — that the ease of leaving a child for adoption makes abortion unneccessary.
Barett, notably, adopted two Haitian children following the 2010 earthquake, and the way she spoke about them during her brief confirmation process leading some people to question her attitudes about interracial adoption. Certainly, Haitian children were targets of the predatory adoption industry following that earthquake; not long afterward a woman named Laura Silsby attempted to abduct 33 Haitian children to the Dominican Republic, where American Christians could come to adopt them — even though every child still had at least one living parent.
Given this background, it’s not unreasonable to believe the shortage of children available for adoption has some bearing on Alito’s opinion in Dobbs. While he has never himself adopted, Alito is a staunch conservative activist sure to have ties with individuals within the adoption industry. Following Alito’s appointment to the Supreme Court in 2006, the Reverend James Dobson, an influential extremist and evangelical leader, disclosed that Alito had sent him a personal note, thanking Dobson for his support and vowing to “keep in mind the trust placed in [him].”
In January of 2021, Dobson posted an anti-abortion meme on his Facebook account, with the caption “The list of couples wanting to adopt literally runs into the millions.”
With the court poised to strike down Roe, the adoption industry must be drooling at the coming crop of unwanted children they can sell to the highest bidder, and with ICWA coming up for argument next year, one has to wonder how the two cases intersect.
Opponents of abortion tend to present themselves as advocates for the well-being of children. But once this far-right Supreme Court has their way, it may well be that unwanted indigenous children — born under legal mandate in states where abortion is illegal — are up for grabs to the white family willing to pay the most to purchase them.
A note on terminology: There are differing opinions on the use of terms like “Indian,” “American Indian,” and “Native American.” Wherever possible I have tried to use a neutral adjective — “indigenous” — in an effort to show respect for all. Where I use other terms, it is in proper names of federal legislation or in quotes. My intention is to show respect, and if anything here offends, you have my apologies.