Find an Indian. Any Indian. That’s essentially the approach the United States takes when a child winds up in foster care. Quite simply: Indian children who wind up in foster care are second-class citizens. A four-decades-old law prioritizes generic Indian culture over the welfare of individual children who find their way into the foster-care system. The Supreme Court was just given the opportunity to help these most vulnerable children, but it refused.
In Haaland v. Brackeen, the lead plaintiffs were a non-Indian couple who needed an emergency judicial order to keep the child who knew them as family. The Brackeens took the child in — he had drugs in his system when he was born — at ten months. Neglect was the reason he was removed from his biological parents, and about a year later parental rights were severed. As is typical in foster care, a family member who is willing to take the child is sought. If one is not found, another tribe member should be found when the child is an Indian, according to the 1978 Indian Child Welfare Act. If a member of the tribe can’t be found, another Indian will do, with no concern for the child’s flourishing in the foster family to which he has become accustomed.
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