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This article is being co-published with The Imprint, a national nonprofit news outlet covering child welfare and youth justice.
Three white couples who sought to adopt Indigenous children will have their legal cases heard by the U.S. Supreme Court next month. Each of the foster families, including a couple from Minnesota, says the 1978 Indian Child Welfare Act discriminated against them because of their race.
The law, known as ICWA, ensures that tribes have a right to intervene when their members are involved in child welfare cases. And it requires that local governments make extra efforts to protect connections with Indigenous culture and kin. The outcome of the case challenging ICWA, Brackeen v. Haaland, has far-reaching implications: not only for the battle against family separation in Indian Country, but potentially for the foundational rights of tribes in relation to the U.S. government.
Two of the couples—Jennifer Kay and Chad Everet Brackeen of Texas, and Heather Lynn and Frank Nicholas Libretti of Nevada—gained full custody of the Native children they wanted to adopt.
One of the three sets of plaintiffs in the Brackeen v. Haaland case did not.
Like the other two couples, Danielle and Jason Clifford of Minnesota ran into laws enacted to address centuries of destructive government policies. Native children have historically been forced to attend abusive boarding schools and systematically placed for adoption into non-Native homes.
But the Cliffords also encountered Robyn Bradshaw. A member of the White Earth Band of the Minnesota Chippewa Tribe, Bradshaw refused to give up her granddaughter, named in court documents as P.S.
“She was the only person who was there for P.S. every single step of the way,” said Conor Tucker, Bradshaw’s attorney of record at the Supreme Court. “The judges changed. The lawyers changed. Sometimes people weren’t there. But Robyn was always, always there.”
After four years in foster care and six years of court hearings, P.S. is now back home with her White Earth community and her grandmother. The 11-year-old is a fan of bike riding and has learned to swim. In addition to sharing movie nights, cartoons, and coloring, Bradshaw has sought regalia so her granddaughter can attend powwows. She’s also introducing P.S. to the Ojibwe language.
In granting the adoption in 2020, a Hennepin County trial court acknowledged the nearly two years P.S. had spent with the Cliffords as a positive foster care experience. But after a long legal battle, the Minneapolis couple did not meet the court’s approval to become her adoptive parents.
“The Cliffords can provide love, attachment, an active two-family household and extended family, and ample financial resources,” the court had ruled the year prior. But her grandmother can nurture her “connection to her tribe, to her Ojibwe culture, to her sister, and to both sides of her family in a way that the Cliffords cannot.”
The adoption of P.S. through the Minnesota juvenile court is final and not in dispute. But the role ICWA played in hindering the Cliffords’ adoption efforts stands at the center of the larger argument now before the nation’s highest court.
The players in Brackeen v. Haaland
The Supreme Court is set to hear oral arguments in the Brackeen v. Haaland case on November 9. Secretary of the Interior Deb Haaland, a Laguna Pueblo member from New Mexico and the nation’s first Indigenous cabinet member, is a named defendant in the case because she represents the federal agency representing the tribes.
The case was brought by the state of Texas, Louisiana, and Indiana, along with seven individual plaintiffs. They include three sets of foster parents and one biological mother:
- the Cliffords, from Minnesota
- the Brackeens, who adopted a Navajo child in 2018 and are seeking to adopt the boy’s half-sister
- the Librettis, who adopted an Indigenous girl in 2018
- Altagracia Socorro Hernandez, the biological mother of the child the Librettis adopted
In completing their adoption, the Librettis overcame initial objections by the Ysleta del Sur Pueblo tribe in Texas. But according to court records, the biological father and Hernandez, the child’s mother, were fully supportive. Hernandez, who is non-Native, has stated ICWA was “interfering with her wishes to have the Librettis adopt her baby.”
All three couples say prioritizing Native homes for Indigenous foster children, and providing additional support to the children’s parents, denies them equal protection. They also say states should not be forced to follow federal law, and that ICWA exceeds the authority of Congress.
A total of 497 Indian tribes and 62 American Indian organizations, 87 members of Congress, 23 states and Washington, D.C., have filed briefs in opposition to the Brackeen plaintiffs. They detail a dire need to maintain the Indian Child Welfare Act, and to protect the integrity of Indigenous families and communities. Defenders of ICWA maintain that the federal law is not based on race, but on the rights of tribes as sovereign nations who have treaty relationships with the U.S. government.
Bradshaw chose to speak through her attorneys and their amicus brief in the case. They say she did not intend to be a party to this case and simply wants to live peacefully with P.S. out of the limelight.
Yet her amicus brief now before the Supreme Court is described by the respected Turtle Talk Indigenous legal affairs blog as “unique,” among the dozens that have been filed in the case to date: “The Cliffords’ narrative of facts was allowed to go unchecked throughout the life of the case until now.”
A child born with her grandmother close
Each of the three plaintiffs in the Brackeen case has a unique set of circumstances. But none can be divorced from history and the high stakes of the case.
ICWA became law at a time when one in four Indigenous children were separated from their families. In contemporary Minnesota, Native children are more than 16 times more likely to enter foster care than white children.
According to the U.S. Department of Health and Human Services’ Children’s Bureau: “ICWA was enacted after Native American children were systematically removed—often without evidence of abuse or neglect that would be considered grounds for removal—and placed with non-Native families, with the intent to deprive them of their Native family or culture.”
Bradshaw’s granddaughter was among them.
“P.S. was born on a warm, clear, and breezy day in July 2011,” a brief filed to the Supreme Court reads.
“Ms. Bradshaw had bonded with P.S. in the womb and saw P.S.’s face for the first time moments after her birth—in the delivery room.”
P.S. and her mother lived with Bradshaw after the birth. And “for the next three years, P.S. was raised in a loving and stable home with Ms. Bradshaw and P.S.’s mother as active, full-time caregivers,” records show. “Ms. Bradshaw fed P.S., bathed her, dressed her, changed her diapers, played with her, sang to her, comforted her, cared for her, tucked her into bed, and woke up the next morning to do it all again.”
But in 2014, Bradshaw’s daughter “fell into drug addiction and became unable to care for P.S. or to contribute to the household finances,” according to court filings. Bradshaw, taking on full responsibility for her granddaughter while her daughter fought to recover, had limited income and lost her home to eviction.
Bradshaw and P.S. stayed with friends for a time. But she eventually left P.S. in the care of her father for two days, while finalizing permanent housing. He agreed, but then disappeared with the child, court records show. Bradshaw panicked. She called the police, who filed a CPS report with Hennepin County.
On August 7, Bradshaw learned her daughter and her grandaughter’s father had been arrested on drug-related charges with P.S. present, and the girl had been placed in emergency foster care.
“Ms. Bradshaw immediately called Hennepin County and asked when she could pick up P.S.,” court documents state. “The County told her she could not do so and gave her no further information.”
Bradshaw had been taken from her home as a child and forced to attend a residential boarding school. So she was steadfast in her determination to reunite with P.S., records show. She “resolved that she would never abandon her granddaughter.”
A Minnesota trial court would later rule that Bradshaw “deeply loved” her granddaughter and the two shared “a strong bond and a secure attachment.”
She showed up
Bradshaw attended every court hearing while her granddaughter lived in foster care—the only person to do so in the six-year life of the case through the Minnesota courts. Throughout, she told social workers she was the child’s lifelong caregiver and that she would provide any information needed. Bradshaw asked, repeatedly, for P.S. to be returned home.
“She continually showed up at those hearings, even without an attorney,” said Shannon Smith, the executive director of the Minneapolis-based ICWA Law Center, who co-authored a brief to the Supreme Court case in support of Bradshaw. “There wasn’t an easy mechanism early on to give her a court-appointed attorney, but she showed up, and she showed up, and she just kept on making sure that everyone involved knew that she was grandma—and that she would always be grandma—and she was there for P.S.”
For two years, P.S. moved through seven different foster care placements. During this time, Hennepin County social workers rejected Bradshaw as a viable caregiver. At the same time, P.S.’s parents struggled—also unsuccessfully—to prove they could care for her.
The reason for Bradshaw’s disqualification? A 15-year-old felony conviction for receipt of stolen property. No one informed Bradshaw that she could have had the record cleared, court filings show.
Ultimately, Bradshaw did clear her record. But not before the “error led to considerable and unnecessary trauma,” according to records filed to the Minnesota trial courts.
“The Minnesota court found she was traumatized by the county’s mistake,” attorney Tucker said of P.S. “She was forced into this system that she should have never been in because she had a family placement at the very beginning.”
Initially denied tribal enrollment, placed with a white foster family
In 2015, the White Earth tribe had indicated to Hennepin County that P.S. was not eligible for enrollment—a requirement under ICWA. The following year, both of P.S.’s parents lost their parental rights, and P.S. was placed with the Cliffords.
During that time, Hennepin County received a letter from the tribe’s new ICWA director reversing that determination: P.S. was eligible to be a member of her tribe and thus receive the protections offered to tribal communities. As a result, in 2017, Hennepin County began signaling its intention to move P.S. to her grandmother’s home.
Under ICWA and the Minnesota Indian Family Preservation Act—which expands upon and strengthens the federal law—Bradshaw was entitled to “first placement preference.” The White Earth tribe became a party to the case, and fought for P.S. to remain with her Indigenous kin.
All parties agreed the Cliffords had been kind and loving foster parents to P.S., and wanted to adopt her. But they disagreed about what was ultimately best for the child.
Twenty minutes to say goodbye
The legal teams seeking to overturn ICWA work for high-powered law firms that have fought tribes over casinos, land, and water and oil rights. In this case, they’ve taken aim at federal laws protecting tribal rights to their children.
By contrast, Mark Fiddler and Rachel Osband—the attorneys who represented the Cliffords in their Minnesota custody case—run a family law practice. Fiddler now represents the plaintiffs in Brackeen v. Haaland, and is a member of the Turtle Mountain Band of Chippewa Indians.
Fiddler has a noteworthy past: He was the founder in 1994 of the ICWA Law Center, which provides pro bono support for tribes and individuals fighting to keep Native families and communities intact. Now, Fiddler is fighting to have ICWA overturned, arguing that it hurts, rather than helps Native children. The shift in his position is explored in the 2019 documentary film “Blood Memory.”
Fiddler declined repeated requests to be interviewed for this story, but in 2014, he told Minnesota Lawyer that because he is Native American, his positions have required “really thick skin.”
“I was not very popular with my own community,” he said then. “But I think one of the guiding stars of being a lawyer is your client’s interests have to be paramount above your personal interests.”
In response to an inquiry from The Imprint, the Cliffords said they can’t speak about the case because of a gag order imposed by Hennepin County. They referred instead to the lead attorneys in the Brackeen v. Haaland case, who work for the multinational corporate law firm Gibson Dunn & Crutcher. They did not return The Imprint’s messages.
But the Cliffords’ argument before the Supreme Court details what they describe as a wrongful practice allowed under ICWA: a child pulled from a loving home and placed with a relative and tribal member. The federal law violates equal protection and illegally “commandeers” the states to follow federal mandates, they argue.
The Cliffords state in court documents that the removal of P.S. from their home in January 2018 left them just 20 minutes to say goodbye to a child who’d lived in their care for almost two years, and P.S. cried “uncontrollably” as they separated.
The Cliffords press their custody case
Among other arguments, the Cliffords have stated they had better financial and practical resources for P.S.
In 2019, the Minnesota District court found testimony from P.S.’s first guardian ad litem “very dismissive of the importance of P.S.’s Ojibwe culture and of growing up in that culture.” This court-appointed representative for P.S. maintained that the Cliffords could meet the girl’s cultural needs “simply by reading books and occasionally bringing her to cultural events.”
The Cliffords further stated that P.S.’s grandmother failed to provide her with proper nutrition, stable housing, and reliable transportation. More pointedly, they claimed Bradshaw exposed the child to second-hand cigarette smoke and allowed contact with her biological mother, whose rights the courts had previously terminated.
Additionally, they claimed that Bradshaw’s prior conviction made her ineligible to adopt her granddaughter—a claim later proven to be false.
At one point, the Cliffords described Bradshaw as “a disinterested relative who was absent from the first years of the child’s life,” according to documents filed in Minnesota courts.
They argued their case multiple times in Hennepin County in 2018 and 2019. But the local juvenile court ruled that while the Cliffords clearly cared for P.S., the young girl was best off with her grandmother.
Still, the Cliffords fought on, bringing their objections to Bradshaw’s adoption of P.S. to the state district and state supreme courts.
Nonetheless, Minnesota’s higher courts repeatedly found that P.S. had deep emotional, physical, cultural, and spiritual bonds with Bradshaw that were not provided by the Cliffords.
Bradshaw’s adoption of P.S. was finalized May 21, 2020 and P.S. has been in her care since.
Bradshaw’s attorney Smith said the couple has remained in touch with P.S., and despite the high stakes there is little animosity between the two families.
“It’s not about any conflict necessarily between the Cliffords and Robyn [Bradshaw],” she said. “The Minnesota courts, the ones who heard from Robyn, the ones who heard the voice of the Cliffords, who heard the voice of the tribal representative, are the ones that found that Robyn absolutely was the best person for P.S.”