Publisher Health

The little girl who will soon be known by the nine justices of the United States Supreme Court as Y.R.J. is now 4 years old. For much of her short life she has been living with Dr. Jennifer Brackeen and Chad Brackeen, a suburban Texas couple fighting with the Navajo Nation to adopt her. Y.R.J.’s birth mother is Navajo. The Brackeens are white.

On Wednesday, the Supreme Court will hear arguments in their case, which could affect not only the little girl’s adoption but those of thousands of Native American children in foster care. Depending on how broadly the justices rule, the outcome of the case, Brackeen v. Haaland, could also start the unraveling of other federal protections that have long been extended to tribes.

That is because the case, which primarily pits the Brackeens and Texas against the U.S. Department of the Interior and five tribes, could turn on whether the Supreme Court finds that tribes are racial classifications rather than political ones — a prospect that the tribes find deeply threatening.

“It would put at risk every treaty, every property and political right and every power that Indian nations possess today,” said Robert Miller, a professor of federal Indian law at Arizona State University, tribal court judge and enrolled citizen of the Eastern Shawnee Tribe.

“All of a sudden, lands would be owned by ‘a race of Indian people,’ not a tribal government,” he said. “Your borders, your police laws, everything on the reservation would be in question. I’m not being hyperbolic. I am afraid of this case.”

Specifically, the Brackeens want the Supreme Court to overturn a federal law, the Indian Child Welfare Act of 1978. The law says that when a child who is eligible for tribal membership winds up in state foster care, the child should, whenever possible, be adopted by a tribal family.

Lawyers for the Brackeens argue that the law discriminates against Native American children as well as non-Native families who want to adopt them because it determines placements based on race. But tribes say they are political entities, not racial groups.

Legal scholars said that, beyond resolving the Solomonic fight over the fate of a child, a decision against the tribes could, in the long term, shake their centuries-old legal status as sovereign nations with a unique relationship to the U.S. government. For 250 years, that relationship has been the foundation of treaties and regulations for tribal health and education benefits; criminal jurisdiction; and hunting, fishing, oil, mineral and gaming rights.

In the short term, if the Supreme Court determines that tribal citizenship is based on race, the child welfare law, often known as the I.C.W.A., will be struck down for violating the equal protection rights of Native children and non-Native adoptive families.

Matthew McGill, a lawyer for the Brackeens, said that catastrophic predictions about the ramifications of overturning the law were overblown. The law is unique in the federal Indian canon, he said, because it deals with Indian child welfare cases occurring off tribal lands. (On reservations, those cases are overseen by tribal social workers and tribal courts.)

“I think the trickle-down effects are not what has been marketed by the opponents of the families,” said Mr. McGill.

The law was drafted to respond to more than a century of Native children’s being forcibly removed from tribal homes by social workers, sent to government and missionary boarding schools and then placed in white Christian homes. Interior Secretary Deb Haaland, a member of the Laguna Pueblo, has commissioned an investigation into the children’s fate.

The law’s goal of reunification — placing Native children with tribal families — has long been a gold standard, according to briefs signed by more than two dozen child welfare organizations. Building a Native child’s connection to extended family, cultural heritage and community through tribal placement, they said, is inherent in the definition of “the best interests of the child” and a critical stabilizing factor when the child exits or ages out of foster care.

In practice, the I.C.W.A. can be deeply imperfect, reliant on an alignment of judges, resources, tribal notice and cooperation between tribal and state social workers. But a limited 2020 study of the law’s effect found that when a tribe received prompt notice and so could press for support services, rates of reunification or placement with a relative were higher than when the tribe did not intervene.

Even so, Native American children continue to be removed from their homes by state social workers at rates disproportionate to their population. The tribes said that was why the law remained critical. The Cherokee Nation said that as of August it was working on about 1,083 foster care, adoption and guardianship cases involving Native American children and state supervision.

State family court judges, who review placements, can rule against a tribe, but the reasons have to be “clear and convincing,” a high bar.

About seven years ago, the Brackeens, who had two biological sons, felt called by their evangelical Christian faith and comfortable circumstances — a large brick home on an acre with a pool and a greenhouse — to foster children, they recounted in a 2019 interview with The New York Times.

A 10-month-old boy, known in court records as A.L.M., whose Navajo mother lived on state land, had entered the Texas foster care system. He was placed with the Brackeens. The Navajo said that because his mother was a tribal member, tribal families should have priority for foster care and adoption. But as months passed, the tribe’s placements fell through and A.L.M. continued to bond with the Brackeens. Eventually, the Navajo and the Cherokee, the boy’s father’s tribe, agreed to let the Brackeens adopt the little boy, who is now 7.

Wanting to foster and perhaps adopt more Native American children but fearful of getting stuck in the same legal labyrinth, the Brackeens agreed to become lead plaintiffs in a 2017 federal lawsuit brought by Texas, Louisiana, Indiana and other families challenging the law.

In 2018, a federal court judge in Texas struck down the law as unconstitutional, and A.L.M.’s biological mother gave birth to Y.R.J. The baby, like her mother, tested positive for methamphetamine, and she was immediately put into state foster care.

The Brackeens filed for custody of Y.R.J. This time, the Navajo petitioned a judge to award custody to the baby’s great-aunt, who lives on the reservation among many relatives. The Brackeens argued that they deserved to adopt the little girl because she would be living with a half brother close in age.

A Texas judge said Y.R.J. could live primarily with the Brackeens but that they would share custody with the great-aunt. The Brackeens would have to bringthe child to the Navajo reservation every summer for extended visits.

Both the Navajo and the Brackeens appealed. A state appellate court ordered a new trial.

Meanwhile, the federal case made its tortuous way through two levels of the United States Court of Appeals for the Fifth Circuit, which issued a splintered opinion that found the law largely, but not entirely, constitutional.

As the case was litigated, support for the law broadened. A brief filed by the Native American Rights Fund was endorsed by 497 tribes. Other briefs were signed by 87 members of Congress and 23 states and the District of Columbia. The American Academy of Pediatrics, the American Medical Association and the American Psychological Association submitted briefs saying that the law helped redress physical and psychological trauma.

The I.C.W.A.’s challengers gathered support, too. Ohio and Oklahoma weighed in, saying that the law violated state autonomy. Lawyers who work in adoption and reproductive rights filed briefs. So did the Christian Alliance for Indian Child Welfare, which is based in North Dakota, and the Goldwater Institute, a conservative policy center in Arizona, where reservations cover nearly 30 percent of the land; they argued that the law was racially discriminatory.

Tribes note that, like any political entity, they each have their own criteria for citizenship. To be a Navajo citizen, for example, one must be at least 25 percent related by blood. Some tribes specify matrilineal descent, some patrilineal. Others, such as the Cherokee, say that what matters is proof of lineage traceable to an original source list such as the Dawes rolls, the late 19th-century tribal membership lists compiled, in fact, by the federal government.

Beyond the racial argument, the Brackeens and Texas have made a second, narrower claim, which some legal experts say the Supreme Court could embrace as a compromise approach. The I.C.W.A. imposes federal law on state family courts, whose role is to apply state law to child welfare cases. Texas says that the I.C.W.A. therefore violates the 10th Amendment, which protects states from federal overreach.

But the welfare of Native children has always been a federal responsibility, said Maggie Blackhawk, a professor at New York University School of Law and the primary author of a pro-I.C.W.A. brief for the American Historical Association. In the 1930s, for example, when the federal government tried to shut down its boarding schools and transfer care of the children to the states, “the states resisted, saying, ‘No, they’re not our kids,’” she said, adding that states did not want to assume the financial burden because they lacked authority to tax tribes and recoup their expenses.

If the Supreme Court strikes down the I.C.W.A. for overreaching, states can pass their own versions, as at least 10 have already done. But if the justices strike it for being racially discriminatory, states would be hard-pressed to draft analogous legislation.

Where the Supreme Court will land is difficult to predict. In 1974, the court ruled in Morton v. Mancari that regulations benefiting tribes are not unconstitutionally race-based. In a 2013 case, Justices Samuel Alito and Clarence Thomas expressed skepticism about the I.C.W.A. But Justice Neil Gorsuch has long argued for tribal sovereignty.

Over the years, the Brackeens have tried to keep a low profile. They declined to be interviewed for this article. “Our priority is continuing to provide a stable and loving home for our children,” they said in a statement.

They added, “While the court-mandated visitation requirements have ended, we still work to maintain contact with biological families on both sides, participating in age-appropriate culture-enriching activities, and visiting the reservations in Arizona and Oklahoma.”

Representatives for the Navajo did not return requests for comment.

The new Texas family court trial to determine whether the Brackeens or the Navajo great-aunt will adopt Y.RJ. is scheduled for December — after the oral argument in the Supreme Court but before the justices rule.