By Michael Benanav, Searchlight New Mexico

There once was a girl who lived in Corrales and loved collecting butterflies. She would capture perhaps 20 or 30 of them at a time, take them inside, then set them free to fly around her bedroom. Another thing she noticed about herself: Whenever she happened to be on the verge of a big life change, a coyote would appear. “Not like one running across the road,” Veronica Krupnick, now 27 years old, recalled, “but like I’d be out on a walk with my family, and a coyote would follow along close behind us.” 

For years, these uncanny animal connections struck her as mysterious and sometimes unsettling. “I didn’t have anyone to teach me about them,” Krupnick said, until she was reintroduced to her Hopi grandparents when she was 19 or 20. It was then that she learned that the coyote and the butterfly are among her clan affiliations. Suddenly, these aspects of her life, along with others, began to make sense.

An enrolled member of the Hopi tribe, Krupnick’s lineage also includes Jemez Pueblo and Navajo ancestry. She was adopted by a white couple when she was 10 years old, after spending four years in seven different foster placements. Though ultimately landing in a home where she was physically safe and materially secure, she struggled throughout her adolescence and was eventually admitted into a behavioral residential treatment facility, where she completed her last two years of high school. Coyote companions were the least of the things that confused her. 

For some 45 years, adoptions like Krupnick’s have been governed by a landmark federal law, the Indian Child Welfare Act. Enacted in 1978, ICWA regulates adoption and foster placement for Native American children who don’t live on reservation lands — the vast majority, owing to the fact that some 87 percent of Native peoples have moved off those lands. The law was designed to end the long and terrible history of involuntarily separating Native children from their families and to do what’s in the best interest of each child. 

Studies from 1969 and 1974 showed that about 1 in 3 Native kids were in foster homes, adoptive homes, or institutions — continuing the near hundred-year legacy of taking Native children from their families and forcing them into boarding schools, where abuse was rampant and assimilation was the priority. The charter of the first boarding school on the Navajo Nation, which opened at Fort Defiance in 1883, clearly stated its goal:  “To remove the Navajo child from the influence of his savage parents,” according to Congressional testimony. 

ICWA strives to reverse that goal and keep children within their families, clans, and communities. Today, Native American tribes and child welfare organizations hail its success with near unanimity. It is widely regarded as the gold standard for child welfare regulations, and states have modeled their own laws for non-Native kids after it to one degree or another.

An upcoming U.S. Supreme Court decision is casting a shadow on all that. The high court will soon rule in Brackeen v. Haaland, in which plaintiffs seek to strike down ICWA, alleging that it discriminates on the basis of race and violates the Constitution in other ways, as well. The case arose from the Texas court system, where Jennifer and Chad Brackeen, a white couple seeking to adopt a Navajo girl, sued to make it easier for non-Native families to adopt Native American children. A decision is expected by the end of June.

Much is at stake. In the big picture, some of the legal challenges to ICWA strike at the very foundation of Indian law, or Title 25 — a voluminous compilation of federal codes governing nearly every aspect of life on tribal lands. Many of these laws are rooted in centuries-old interpretations of the Constitution’s Commerce Clause that, among other things, give Congress the power to regulate and protect certain tribal activities. Lawyers for the Brackeens, along with conservative groups such as the Goldwater Institute, argue that Native American child custody issues are not among them.

Should the high court rule that it was indeed beyond the authority of Congress to enact ICWA in the first place — by narrowing the conventional understanding of the Commerce Clause — a swath of other laws could fall, too. 

A skeptical Justice Neil Gorsuch suggested during oral argument in November that these could include Native American health care provisions, religious liberties, rights to access sacred sites and tribal environmental regulations. “There would be a lot that would be bitten out of Title 25,” he said. “We’d be busy for the next many years striking things down.” 

The court could conclude that Congress didn’t violate the Commerce Clause, but overreached in more limited ways, overturning ICWA without the alarming ripple effects.

But if the justices rule that ICWA violates the Equal Protection Clause of the Fourteenth Amendment — concluding that it is a “race-based law” — the consequences could be catastrophic, many Native American advocates fear.

“Indian law is based on the principle that tribes are sovereign nations that have a government-to-government relationship with the United States,” said Beth Wright, a staff attorney at the Native American Rights Fund and an enrolled member of Laguna Pueblo. “If this is reduced to a racial classification, all rights that tribes and tribal people enjoy are also subject to attack. They’re attacking tribal sovereignty at its core.”

Wright fears that this would spawn wholesale assaults on Indian Country, such as environmental and economic exploitation by corporations eager to tap into natural resources and casinos on Native land. She points out that the law firm representing the Brackeens pro bono also represents Chevron and some of the largest gaming companies in the world. 

Opponents of ICWA dismiss such concerns as exaggerated. Their only targets, they say, are Native child welfare regulations.

In New Mexico, Native American adoptions and foster care are regulated by an especially robust version of ICWA called the Indian Family Protection Act. As a state law, the Act will remain intact unless the Supreme Court strikes down ICWA as a violation of the Equal Protection Clause – in which case it too would likely be thrown out as race-based, according to attorneys on both sides of the debate. 

A complex welter of issues

Beyond the tangle of legal matters, the Supreme Court case delves into the evocative terrain of historical trauma, race, identity, cultural biases — and the very meaning of family. 

The moral heart of the Brackeens’ argument is that ICWA, despite its good intentions, actually discriminates against Native children by limiting their options for adoptive and foster families and making “genetics and ancestry” the key criteria for placement. The Brackeens themselves, who are evangelical Christians, fostered and ultimately adopted a boy of Navajo and Cherokee parentage in 2018, following what they described as a religious calling. They have been fighting to adopt his younger half-sister, who they have fostered for most of her four years, sharing custody with a great-aunt who lives on the Navajo Nation.

ICWA mandates that child welfare agencies should first try to settle Native children with other family members. If that’s not possible, they should next try to place children with another family from their tribe, then with a family from another tribe, and lastly in a non-Native household. Exceptions are made on a case-by-case basis, when in the best interest of the child. But the Brackeens contend that these preferences harm Native children by steering them away from adoptive families that might be optimal but are farther down the list.

Among the many who disagree are 497 tribes, dozens of children’s rights organizations, 87 members of Congress, the ACLU, the American Academy of Pediatrics, the American Psychological Association and other groups that have filed or joined amicus briefs in support of ICWA.

There is ample evidence dating back decades that removing Native children from Native society can cause “untold social and psychological consequences,” according to the brief filed by 180 tribes.  Another brief, filed by Casey Family Programs and 26 other child welfare and adoption organizations from around the country, highlights ICWA’s crucial benefits. 

Citing outcomes data, the brief points out that, by favoring placement with blood relatives, clan relations or close family friends, Native foster children are less likely than non-Native children to be shuffled around from one setting to another, resulting in “fewer mental health disorders, and better well-being, while minimizing trauma.” They also have a better chance than non-Native kids of landing a permanent home. 

A system “that does not prioritize family integrity and community ties, invites a return to the days when courts unthinkingly presumed that an Indian child’s best interests were served by placement with a middle-class, non-Indian family,” the brief adds. 

Wright, the lawyer with the Native American Rights Fund, put it bluntly: “The other side doesn’t really care about Indian children.”

Who am I?

For Native child welfare advocates in New Mexico, the most important feature of ICWA’s placement preferences is its attempt to address the deep, existential questions faced by children who find themselves separated from their parents. 

“Where do I come from? Who are my people? Who am I? Anyone who has interacted with the foster care system can identify with wondering about these things,” said Angel Charley, of Laguna Pueblo. As executive director of the Coalition to Stop Violence Against Native Women, Charley provided input into the drafting of New Mexico’s Indian Family Protection Act of 2022; she also works on improving communication between Native foster families and the Children, Youth and Families Department, the agency responsible for foster care in New Mexico.

“We need to insure ‘belonging’ for little ones who are removed from families for circumstances that are beyond their control,” Charley said in a phone interview. “Indigenous people have language, culture, ceremony. We’re so grounded in belonging and to our ancestors and the land. For a child not to have access to those ways of being is detrimental. 

“I know many adults who grew up with no connection to community and are struggling to figure out how to connect. Kinship and culture can’t be replicated outside of our communities. Belonging is more important than material wealth.”

Veronica Krupnik’s complex story bears this out, though parts of it, if taken in isolation, could bolster the argument against ICWA’s placement preferences: At age nine, she was being fostered by a family member, but the situation turned abusive. She was then placed with a white couple, on an emergency basis, and they eventually adopted her. 

Her adoptive parents were “wonderful providers,” sending her to top private schools, she said. “They wanted me to be educated and have every opportunity.” But she spiraled as she entered her teen years, rebelling against a restrictive household where she never felt entirely at home. “It wasn’t just their fault,” she reflected. “I was a traumatized kid.”

Exacerbating those traumas was her sense of being thrust into a world in which she didn’t belong. “It’s not just one thing. It’s how you speak, how you dress, how you wake up in the morning, how you eat dinner,” Krupnick said. “In Native cultures, ways of life are more abstract; in Western culture, everything needs to have an answer, everything happens on a timeline, there’s a lot less grey.” 

What’s more, leaving her community as a child, she didn’t know much about her own culture, leaving her ungrounded, unrooted.

State fails Indigenous children

Though New Mexico, with the passage of IFPA, has emerged as a leader in Native American child welfare, it hasn’t yet lived up to its aspirations. A 2021 survey by the Children, Youth and Families Department found that the state has fallen far short of meeting several of its obligations to Native kids in foster care. Only about a quarter of them found preferred placements with family or tribal members, the survey revealed.

The critical bottleneck is the shortage of licensed Native foster families. While efforts are now being made to increase Native participation — in part by employing more culturally sensitive ways of communicating with and evaluating households — raising these numbers will take time.

The major exception to these deficiencies is in Bernalillo County, where a special ICWA court was established in 2020. Headed by Judge Catherine Begaye, a member of the Navajo Nation, the court has seen more than 100 children come through its doors: 86 percent have gone into preferred placements; 60 percent have been reunified with their parents; none of the families that were reunified have come back before the court; and no parental rights have been terminated, court data show.

Judge Begaye chokes up with emotion when speaking of her hopes and dreams for the children she sees, and she uses the powers of the bench to support each one. This can include helping extended family members become licensed foster parents, working in tandem with tribes and ordering the Children, Youth and Families Department to ensure that kids have the opportunity to participate in dances and other ceremonies. Begaye calls doing what’s best for Native children simply “following the law.” 

If ICWA is overturned on equal protection grounds, this special court will likely cease to function, at least in its current form. Throughout New Mexico and the nation, protocols for handling Native child welfare cases will enter unknown territory. The state doesn’t have any backup plans to address this possibility. 

Krupnick hopes it won’t come to that. She knows the value of the very things that ICWA was designed to protect and believes other Native children do, too. “As a kid plopped from one community to another, that took away a really essential part of my identity. I couldn’t figure out where I was going until I found this core piece of myself.”

Reconnecting with her culture and her family of origin, and making Native friends, has helped Krupnick heal. “When I go back to Hopi, something in me knows I’m home. I have a physical response that I don’t have anywhere else, except maybe at my great-grandma’s house in Jemez. It’s like my body takes a great big sigh of relief,” she said. Being around other Native people, she added, means “not having to explain.” 

She now volunteers with and advocates for Native children who are in the child welfare system and serves on the board of directors of CASA First – which trains court-appointed advocates for foster children in the First Judicial District. Recently, she also took a new job in the New Mexico’s House Majority Office. 

And she still has close encounters with coyotes from time to time, she said. “But now I can lean on it, instead of it being weird and confusing.”