Mary Annette Pember
Indian Country Today
President Donald Trump’s nominee for the U.S. Supreme Court, Judge Amy Coney Barrett, is raising red flags for supporters of a federal law designed to preserve Native American families and culture.
The Indian Child Welfare Act is not currently before the nation’s top court, but there is a very real possibility it could end up there.
The constitutionality of the 1978 law — which aims to keep Native American children from being adopted or placed in foster care outside their families, tribes or Indian Country — is being considered by a federal appeals court in New Orleans.
The 5th U.S. Court of Appeals last fall made the unusual decision to vacate one of its rulings that upheld the Indian Child Welfare Act.
The court announced it would review the case, Brakeen v. Bernhardt, “en banc,” a proceeding in which the full court rehears a case that was decided by a three-judge panel. An en banc review is a rare legal procedure reserved for maintaining uniformity of the court’s decisions or to show the proceeding involves a question of exceptional importance.
If the full 5th Circuit Court strikes down the Indian Child Welfare Act, the case will undoubtedly head to the Supreme Court.
Supporters of the law say they have good reason to scrutinize those, including Barrett, who will potentially decide its fate.
“If we were to walk back the act, we would be walking back into a world where we had tremendous numbers of children separated from their families unnecessarily and placed in homes that don’t reflect them or their culture,” said David Simmons, government affairs and advocacy director for the National Indian Child Welfare Association.
Barrett has limited experience with Indian law, “which is not unusual for a Supreme Court nominee,” according to the National Congress of American Indians and the Native American Rights Fund.
“For years, NCAI and NARF have stressed the importance of appointing judges who understand federal Indian law and tribal sovereignty and will continue to do so,” the fund said.
Barrett serves on the 7th U.S. Circuit Appeals Court in Chicago and is a proven conservative, a perfect candidate to round out Trump’s efforts to gain a conservative majority in U.S. courts.
She also belongs to a religious group that has been accused by ex-members of subjugating women, and has adopted two children from Haiti, which has led to some fiery debates online.
Her Senate confirmation hearings are set to begin next week.
Barrett, a former law clerk for Justice Antonin Scalia, also has been a member of the ultra-conservative and influential Federalist Society for several years, and would be among kindred spirits on the nation’s top court. Trump appointees Brett Kavanaugh and Neil Gorsuch are Federalist Society members, as are John Roberts, Samuel Alito and Clarence Thomas.
Federalist Society ideals include reducing federal power and protecting individual liberty. Its membership famously supports originalism and textualism, views forwarded by conservatives as a means to impede more liberal jurisprudence that interprets constitutional rights more broadly.
In practice, this means opposing most government regulation of business, fiercely defending private property owners’ rights and forwarding the idea that laws such as the Indian Child Welfare Act put tribal sovereignty before the individual, best interests of Native children.
Politico describes Barrett as a superstar among the religious right.
She is a member of People of Praise, part of the global Catholic Charismatic Renewal movement that elevates the role of men as divinely ordained as head of the family and faith, according to a report by The Associated Press.
People of Praise, founded in South Bend, Indiana, is part of the Catholic Pentecostal movement and meets and organizes outside the purview of a church.
Married couples and their children often share multifamily homes or cluster in neighborhoods designated for “city building” by the group’s leaders, where they can easily socialize and walk to each other’s houses.
Among the group’s first members in South Bend were Adrian Reimers and his wife, Marie. The couple was active for more than a dozen years before he said he became disillusioned and was “dismissed” from the group in the mid-1980s.
Reimers, who teaches philosophy at Notre Dame, went on to write detailed academic examinations of the group’s inner workings and theological underpinnings. In a 1997 book about People of Praise and other covenant communities, Reimers wrote that the group’s fundamental principle was St. Paul’s stipulation from the Bible that the husband is the “head” of his wife and that the wife is to “submit in all things.”
Barrett did not disclose her People of Praise membership on a Judiciary Committee questionnaire for Supreme Court nominees that is designed to reveal any conflicts of interest that might influence legal objectivity. She did note, however, that she has served as trustee of the group’s Trinity school, which has a sister school in Haiti.
Barrett has not shared any legal details of her adoptions.
Some Indian Child Welfare Act supporters say that information should be a matter for public scrutiny as the Senate Judiciary Committee examines Barrett’s ability to serve on the Supreme Court.
“It should be an open question,” said Matthew Fletcher, of the Grand Traverse Band of Ottawa and Chippewa Indians, who is a professor of law at Michigan State University College of Law and director of the Indigenous Law and Policy Center.
Simmons, of the National Indian Child Welfare Association, agreed.
“Part of our due diligence in Indian Country is to understand each justice’s life experiences, legal perspectives and record in the courts,” he said.
Indian Country Today contacted the 7th Circuit Appeals Court requesting an interview with Barrett. She did not respond.
Readers responded strongly to a recent opinion piece in the Wall Street Journal accusing the left of politicizing Barrett’s adoptions. Irene Eggers of Wheat Ridge, Colorado, accused critics of Barrett’s adoption of not thinking clearly. “Why don’t they ask (Barrett’s children) if they prefer being malnourished in Haiti to being members of the Barrett family?”
Beth Rutherford of Fond du Lac, Wisconsin, wrote about her White family’s adoption of an African girl, “What we did through adoption was to put flesh on our faith that compels us to love others sacrificially.” Lutch, like other critics, equated questions about Barrett’s adoption to “denigration.”
According to the AP report, Barrett’s advocates are trying to frame questions about her involvement in People of Praise as anti-Catholic bigotry ahead of her upcoming Senate nomination hearings.
Asked about People of Praise in a televised interview last week, Vice President Mike Pence responded, “The intolerance expressed during her last confirmation about her Catholic faith, I really think was a disservice to the process and a disappointment to millions of Americans.”
Practicing Christians are more than twice as likely to adopt than the general population, according to a 2013 study by the Barna Group. The study also found most adoptive parents are White, while the children they adopt are overwhelmingly non-White.
These demographics can stir troubling memories of historical interactions between White Christians and Native people — whether the Catholic Church’s 15th century documents granting European Christian explorers permission to use any means necessary to subdue and convert Indigenous peoples, or more recent abuses of the boarding school era.
When the Indian Child Welfare Act was enacted, 25 to 35 percent of Native children were removed from their homes by state welfare and private adoption agencies.
According to studies cited by the National Indian Child Welfare Association, Native children placed with non-Native families are at greater risk for mental health issues such as substance abuse, depression and other maladaptive behaviors.
Authority over the welfare of their own children is a fundamental aspect of tribal sovereignty.
Rates of out-of-home placements for Native children are about 2.6 times greater than that of White children, according to the National Center for Juvenile Justice.
Were it not for the Indian Child Welfare Act, however, the numbers would be far higher, Simmons said.
“The problem is still there, but it’s tremendously improved,” he said.
As the country focuses on police reform, social justice and entrenched racism, child welfare professionals are asking questions about child welfare as an institution, Simmons noted.
“We know that cultural and racial bias has systematically been part of the child welfare system for many years,” he said.
“I see the Indian Child Welfare Act as one of the best examples of Congress saying they recognize that there has been a bias, and that it’s had a terrible, detrimental impact upon a particular group of people.”
Mary Annette Pember, a citizen of the Red Cliff Ojibwe tribe, is a national correspondent for Indian Country Today.
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This story has been corrected to reflect Irene Eggers and Beth Rutherford as authors of comments in the Wall Street Journal.