Nos. 21-376, 21-377, 21-378, 21-380
IN THE
Supreme Court of the United States
___________
DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.,
Petitioners, Cross-Respondents,
v.
CHAD EVERET BRACKEEN, ET AL.,
Respondents, Cross-Petitioners.
_________________
On Writ of Certiorari to the
United States Court of Appeals for the Fifth
Circuit
_________________
BRIEF OF THE AMERICAN PSYCHOLOGICAL
ASSOCIATION, SOCIETY OF INDIAN
PSYCHOLOGISTS, INDIANA
PSYCHOLOGICAL ASSOCIATION, LOUISIANA
PSYCHOLOGICAL ASSOCIATION, AND TEXAS
PSYCHOLOGICAL ASSOCIATION AS AMICI
CURIAE IN SUPPORT OF THE FEDERAL AND
TRIBAL PETITIONERS
_________________
Deanne M. Ottaviano
AMERICAN PSYCHOLOGICAL
ASSOCIATION
750 First Street, NE
Washington, DC 20002
(202) 336-5500
Beth S. Brinkmann
Counsel of Record
Daniel G. Randolph
Matthew C. Quallen
COVINGTON & BURLING LLP
850 Tenth Street, NW
Washington, DC 20001
(202) 662-6000
bbrinkmann@cov.com
Additional Captions Listed on Inside Cover
_________________
CHEROKEE NATION, ET AL.,
Petitioners, Cross-Respondents,
v.
CHAD EVERET BRACKEEN, ET AL.,
Respondents, Cross-Petitioners.
_________________
TEXAS,
Petitioners, Cross-Respondents,
v.
DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.,
Respondents, Cross-Petitioners.
_________________
CHAD EVERET BRACKEEN, ET AL.,
Petitioners, Cross-Respondents,
v.
DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.,
Respondents, Cross-Petitioners.
_________________
i
TABLE OF CONTENTS
INTERESTS OF AMICI CURIAE .............................. 1
INTRODUCTION
AND
SUMMARY
OF
ARGUMENT ....................................................... 3
ARGUMENT ............................................................... 6
I.
Congress
Enacted
ICWA
Based
on
Evidence
Establishing
that
Indian
Children Benefit When They Are Placed
with Indian Families. .......................................... 6
II.
Psychological Research Confirms that
Indian Children Develop a More Stable
Sense of Identity and More Positive Life
Outcomes When Parented by Indian
Adults. ................................................................ 10
A. Research Confirms that Enculturation
and the Formation of an Indian
Identity Build Resiliency and Self-
Esteem Among Indian Children. ................. 11
B. Placing Indian Children with
Extended Family, Tribal Members, or
Other Indian Adults Facilitates Their
Personal Development and Is Tied to
Positive Life Outcomes. ............................... 18
CONCLUSION .......................................................... 24
ii
TABLE OF AUTHORITIES
Cases
Armour v. City of Indianapolis,
566 U.S. 673 (2012) ................................................ 5
Atkins v. Virginia,
536 U.S. 304 (2002) ................................................ 1
City of New Orleans v. Dukes,
427 U.S. 297 (1976) ................................................ 5
Morton v. Mancari,
417 U.S. 535 (1974) ................................................ 6
Osborne v. Ohio,
495 U.S. 103 (1990) ................................................ 6
Perry v. New Hampshire,
565 U.S. 228 (2012) ................................................ 1
Santa Clara Pueblo v. Martinez,
436 U.S. 49 (1978) .................................................. 4
Washington v. Harper,
494 U.S. 210 ........................................................... 1
Worcester v. Georgia,
31 U.S. (6 Pet.) 515 (1832) ..................................... 4
Statutes
25 U.S.C. § 1902 .......................................................... 6
25 U.S.C. § 1903 .......................................................... 4
iii
25 U.S.C. § 1915 .................................................... 4, 23
Indian Child Welfare Act, Pub. L. No. 95-
608, 92 Stat. 3069 (1978) ...................................... 3
Pub. L. No. 93-580, 88 Stat. 1910 (1975) .................... 7
Legislative History
H.R. Rep. No. 95-1386 (1978) ................................ 5, 10
Indian Child Welfare Act of 1977, Hearing
Before the S. Select Comm. on Indian
Affairs, 95th Cong. 1st Sess. (1977) ...................... 7
Indian Child Welfare Act: Hearings Before
the Subcomm. on Indian Affairs and
Public Lands of the H. Comm. on
Interior and Insular Affairs, 95th Cong.
2d Sess. (1978) ........................................................ 7
Indian Child Welfare Program: Hearings
Before the Subcomm. on Indian Affairs
of the S. Comm. on Interior and Insular
Affairs on Problems that American
Indian Families Face in Raising Their
Children and How these Problems Are
Affected by Federal Action or Inaction,
93d Cong., 2d Sess. (1974) ............................. 7, 8, 9
Other Authorities
87 Fed. Reg. 4,636 (Jan. 28, 2022) ............................ 19
Am. Pyschological Ass’n, APA Resolution on
Child and Adolescent Mental and
Behavioral Health (2019) ....................................... 2
iv
Carol Locust, Split Feathers: Adult
American Indians Who Were Placed in
Non-Indian Families as Children, 44
Ont. Ass’n Child’s Aid Soc’y 11 (2000) ................ 21
Child Welfare League of America, Kinship
Care: A Natural Bridge (1994) ............................ 23
Christopher Lalonde, Identity Formation
and Cultural Resilience in Aboriginal
Communities, in Promoting Resilience in
Child Welfare (Flynn, Dunning, Barber
eds., 2006) ............................................................. 16
Christopher Wolsko et al., Stress, Coping,
and Well-Being Among the Yupik of the
Yukon-Kuskokwim Delta: The Role of
Enculturation and Acculturation, 66
Int’l J. Circumpolar Health 51 (2007) ........... 11, 13
Irving N. Berlin, Anglo Adoptions of Native
Americans: Repurcussions in
Adolescence, 17 J. Am. Acad. Child
Pyschiatry 387 (1978) .......................................... 17
Jeannine Carriere, Connectedness and
Health for First Nation Adoptees, 10
Paediatric Child Health 545 (2005) .................... 21
Jeannine Carriere, Maintaining Identities:
The Soul Work of Adoption and
Aboriginal Children, 6 J. Pimatisiwin 61
(2008) .................................................................... 21
v
John G. Red Horse et al., Family
Preservation: Concepts in American
Indian Communities (2000) ........................... 19, 21
Karina L. Walters & Jane M. Simoni,
Reconceptualizing Native Women’s
Health: An “Indigenist” Stress-Coping
Model, Am. J. Pub. Health 520 (2002) .......... 11, 13
Maine Wabanaki-State Child Welfare Truth
& Reconciliation Commission, Beyond
the Mandate: Continuing the
Conversation (2015) ............................................. 23
Marilyn Poitras & Norman Zlotkin, An
Overview of the Recognition of
Customary Adoption in Canada 25
(2013) .................................................................... 19
Mark Winokur, Amy Holtan & Keri E.
Batchelder, Kinship Care for the Safety,
Permanency, and Well-Being of Children
Removed from the Home for
Maltreatment (Review), Cochrane
Database of Systematic Reviews (2014) .............. 23
National Institute of Mental Health,
Suicide, Homicide, and Alcoholism
Among American Indians: Guidelines for
Help (1973) ............................................................. 9
Olivia Heid et al., Indigenous Youth and
Resilience in Canada and the USA: A
Scoping Review, 3 Adversity &
Resilience Sci. 113 (2022) .................................... 17
vi
Paul R. Smokowski et al., Ethnic Identity
and Mental Health in American Indian
Youth: Examining Mediation Pathways
Through Self-esteem, and Future
Optimism, 43 J. Youth Adolescence 343
(2014) .................................................................... 16
Puneet Chawla Sahota, Kinship Care for
Children who are American
Indian/Alaska Native: State of the
Evidence, 97 Child Welfare 63 (2019) ........... 23, 24
Raven Sinclair, Identity Lost and Found:
Lessons from the Sixties Scoop, 3 First
Peoples Child & Fam. Rev. 65 (2007) ............ 19, 21
Shanley Nicolai & Merete Saus,
Acknowledging the Past While Looking
to the Future: Conceptualizing
Indigenous Child Trauma, 92 J. Child
Welfare 55 (2013) ................................................. 16
Teresa D. LaFromboise et al., Family,
Community, and School Influences on
Resilience Among American Indian
Adolescents in the Upper Midwest, 34 J.
Cmty. Psych. 193 (2006) .......................... 13, 14, 19
Teresa D. LaFromboise et al., Psychological
Impact of Biculturalism: Evidence and
Theory, 114 Psychological Bulletin 395
(1993) .............................................................. 13, 14
vii
Therese DeLeane O’Nell, Disciplined
Hearts: History, Identity, and Depression
in an American Indian Community
(1998) .................................................................... 17
Victoria M. O’Keefe et al., Understanding
Indigenous Suicide Through a
Theoretical Lens: A Review of General,
Culturally-Based, and Indigenous
Frameworks, 55 Transcultural
Psychiatry 775 (2018) .................................... 11, 13
1
INTERESTS OF AMICI CURIAE1
The American Psychological Association is the
leading association of psychologists in the United
States. A non-profit scientific and professional
organization, the Association has more than 133,000
members and affiliates. The Association has an
institutional interest in increasing and disseminating
knowledge regarding human behavior, and fostering
the application of psychological learning to important
human concerns.
In cases where psychological learning and
research may assist the court, the Association
regularly files amicus briefs before this Court and
courts throughout the nation. The association has
filed almost 200 such briefs since 1962. In turn, this
and other courts regularly rely upon the Association’s
expertise. See, e.g., Perry v. New Hampshire, 565 U.S.
228, 244-45 (2012); Atkins v. Virginia, 536 U.S. 304,
316 n.21 (2002); Washington v. Harper, 494 U.S. 210,
226 n.9, 230, 234 n.13 (1990).
The Association and its members have a distinct
interest in safeguarding childhood mental and
behavioral health—which is “essential to health and
1 No party or counsel for any party authored any part of this brief
nor made a monetary contribution intended to fund the
preparation or submission of this brief. The parties have
provided consent to the filing of this amicus brief.
2
well-being across the lifespan.”2 The Association has
adopted resolutions calling for “the use of evidence-
based research and knowledge to support and
advocate for policy efforts . . . that address[] structural
determinants of mental and behavioral health burden
among all children and youth.”3 The Indian Child
Welfare Act and its placement preferences, which
promote the physical and mental well-being of Indian
children, are such policy efforts.
The Society of Indian Psychologists (“SIP”) is an
organization that advocates for the psychological well-
being of American Indian, Alaska Native, and Native
Hawaiian
people
and
to
advance
knowledge
pertaining to Indigenous psychology. SIP supports a
community of members who are professionals in
academia, practitioners, researchers, and students
who seek to disseminate knowledge and new
information relevant to Native people.
The Indiana Psychological Association (“IPA”) is
the
organization
representing
scientific
and
professional psychology in Indiana. The purpose of
the IPA is to advance psychology as a science, as a
profession, and as a means of promoting public
welfare. To achieve this purpose, IPA promotes and
disseminates evidence-based information related to
social justice issues and public welfare, demonstrates
a commitment to valuing multicultural competence,
2 Am. Pyschological Ass’n, APA Resolution on Child and
Adolescent
Mental
and
Behavioral
Health,
1
(2019),
https://perma.cc/EMC5-9FXF.
3 Id. at 2.
3
and encourages programs that benefit the public,
while upholding high standards of professional ethics.
The Louisiana Psychological Association (“LPA”),
founded
in
1948,
is
the
largest
professional
organization for psychologists in the State of
Louisiana. LPA’s mission is to “support and advance
psychology as a science, as a profession, and as a
means of promoting health, education, and human
welfare.” That mission has been enhanced and
strengthened throughout LPA’s history, by its
contributions to scientific knowledge; dissemination
of this knowledge through education of its members
and the general public; promotion of health and
human welfare through the application of this
knowledge; as well as active membership involvement
in professional, legislative, legal, and community
endeavors.
The Texas Psychological Association (“TPA”) is the
professional organization for psychologists in the
State of Texas. Founded in 1947, TPA’s mission is to
represent and enhance the profession of psychology in
Texas, while promoting human health and welfare
through education, science, and practice.
INTRODUCTION AND
SUMMARY OF ARGUMENT
In 1978, Congress enacted the Indian Child
Welfare Act (“ICWA”) “to promote the best interests of
Indian children” as well as the vitality of Indian
Tribes. Pub. L. No. 95-608, § 3, 92 Stat. 3069 (1978)
4
(codified at 25 U.S.C. §§ 1901-63).4 Congress did this,
in part, through providing for preferences to govern
placement of Indian children in adoptive, preadoptive,
and foster care—namely, those children who are
members of an Indian Tribe, or are eligible for
membership and the child of a member. See 25 U.S.C.
§§ 1903(4), 1915. ICWA requires that, in the absence
of good cause to the contrary, an Indian child should
be placed with the child’s extended family, members
of the child’s Tribe, or another Indian family. 25
U.S.C. § 1915(a)(1)–(3); see also id. § 1915(b)(1)–(4).
On the evidentiary record before it in 1978,
Congress determined that—all other things being
equal—it was in the best interests of an Indian child
to be raised by family or in a home where he or she
could develop a strong sense of identity as a member
of the Indian community. Congress also acted based
on evidence demonstrating that, in the absence of
ICWA’s placement preferences, the vast majority of
4 This brief uses the term “Indian” in keeping with the relevant
statute’s repeated use of that term. See, e.g., 25 U.S.C.
§ 1903(1)–(12). This brief also uses the term “Indian” in light of
its longstanding association in the law with those peoples
comprising “‘distinct, independent political communities’”
holding the status of “separate sovereigns pre-existing the
Constitution.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55–
56 (1978) (quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559
(1832) (Marshall, C.J.)).
The term “Indian” is intended to be inclusive of the indigenous
peoples of the continental United States, Alaska, Hawaii, and the
United States Territories. These groups are also referred to as
Native American, Alaska Native, and Native, and by many
aboriginal/traditional specific names. As the First Peoples of this
land, many prefer to be recognized by the names of their pre-
colonial Pueblos, Tribes, and nations.
5
fostered and adopted Indian children were living in
non-Indian homes. See H.R. Rep. No. 95-1386, at 9
(1978) (noting that a 16-State survey had shown
approximately 85% of Indian children placed in foster
care resided in non-Indian homes).
In the intervening decades, psychological research
has confirmed Congress’s determination that Indian
children generally do best when they are placed with
Indian families. Researchers have found that the
formation
of
an
Indian
identity
through
enculturation—i.e., the process of learning about and
adopting features of one’s cultural heritage—provides
Indian children with substantial mental health
benefits,
including
increased
self-esteem
and
resilience. Resilience, in turn, is the capacity to
achieve good outcomes despite serious threats to an
individual’s development. Research also confirms
that Indian children realize these benefits more
readily when they are raised by Indian parents. By
contrast, Indian children who lose their traditional
cultural identity (or never adequately form such an
identity) often suffer worse outcomes, tending to lose
resilience, resorting to risk-taking behaviors as coping
mechanisms, and experiencing significant emotional
distress.
This
research
demonstrates
that
ICWA’s
placement preferences further the best interests of
Indian children, and therefore—consistent with due
process and equal protection principles—are, at a
minimum, “rationally related to a legitimate state
interest,” City of New Orleans v. Dukes, 427 U.S. 297,
303 (1976); see also Armour v. City of Indianapolis,
566 U.S. 673, 681 (2012) (law subject to rational basis
6
review is generally “valid if there is a plausible policy
reason for the classification”). As detailed below,
research confirms that ICWA’s placement preferences
directly advance the government’s strong “interest in
safeguarding the physical and psychological well-
being of a minor,” Osborne v. Ohio, 495 U.S. 103, 109
(1990), by facilitating the development of Indian
children and their associations with the broader
Indian community. Because ICWA’s design “can be
tied rationally to the fulfillment of Congress’ unique
obligation toward the Indians,” its “legislative
judgments [should] not be disturbed.” Morton v.
Mancari, 417 U.S. 535, 555 (1974).
ARGUMENT
I. Congress Enacted ICWA Based on Evidence
Establishing that Indian Children Benefit
When They Are Placed with Indian Families.
In enacting ICWA, Congress identified two
primary objects of its exercise of legislative authority:
first, “to protect the best interests of Indian children,”
and second, “to promote the stability and security of
Indian tribes and families.” 25 U.S.C. § 1902. In
determining that ICWA’s placement provisions
promote the best interests of Indian children,
Congress developed a significant evidentiary record
that Indian children benefit from placement with
Indian parents.
Following reports in the 1970s that “an alarmingly
high percentage of Indian children were being
separated from their natural parents permanently
through the actions of nontribal government agencies
and, in most cases, placed with non-Indian families,”
7
the Senate held oversight hearings in 1974. Indian
Child Welfare Act: Hearings Before the Subcomm. on
Indian Affairs and Public Lands of the H. Comm. on
Interior and Insular Affairs, 95th Cong. 2d Sess. 31
(1978) (“1978 House Hearings”) (describing history of
Act). Those hearings confirmed the reports and
“pointed out that serious emotional problems often
occur as a result of placing Indian children in homes
which do not reflect their special cultural needs.” Id.;
see also Indian Child Welfare Program: Hearings
Before the Subcomm. on Indian Affairs of the S.
Comm. on Interior and Insular Affairs on Problems
that American Indian Families Face in Raising Their
Children and How these Problems Are Affected by
Federal Action or Inaction, 93d Cong., 2d Sess. 45
(1974) (“1974 Senate Oversight Hearings”).
The year following these hearings, Congress
created
the
American
Indian
Policy
Review
Commission “to conduct a comprehensive review” of
federal Indian policy. Pub. L. No. 93-580, 88 Stat.
1910 (1975). That Commission issued findings
“support[ing] the comments made by child welfare
experts and Indian people at the 1974 hearings.” 1978
House Hearings at 32. Both houses of Congress
continued to develop evidence supporting ICWA
during the 95th Congress. See generally 1978 House
Hearings; Indian Child Welfare Act of 1977, Hearing
Before the S. Select Comm. on Indian Affairs, 95th
Cong. 1st Sess. (1977).
At the conclusion of this legislative process,
Congress enacted ICWA against a compelling
evidentiary backdrop demonstrating that, all other
8
things being equal, Indian children benefit when they
are parented by adults who are also Indian.
For example, Dr. Joseph Westermeyer, a social
psychiatrist
at
the
University
of
Minnesota’s
Department of Psychiatry, testified before Congress
based on his experience treating 120 Indian patients,
approximately half of whom had been placed in either
foster or adoptive homes with non-Indian families.
See 1974 Senate Oversight Hearings at 45. He
explained that, as a result, the patients largely
developed non-Indian cultural identities, and came to
suffer from severe identity confusion upon reaching
adolescence when they experienced various sorts of
discrimination—including derogatory name-calling,
denial of job applications, and social ostracization—
due to the fact that they were Indian. See id. at 45–
46. These problems were exacerbated by the fact that
the Indian children placed in non-Indian homes did
not “hav[e] around them other Indians” who could
“support them through this difficult stage.” Id. at 49.
It was “extremely common” for Indian children in
these circumstances to experience suicide, drug usage,
truancy, and other adverse consequences. Id. at 46.
Dr. Alan Gurwitt, associate clinical professor in
child psychiatry, and Dr. Carl Mindell, child
psychiatrist on the faculty of the Department of
Psychiatry at Albany Medical College, gave similar
testimony before Congress. Both advised that, “as a
general rule . . . it is advisable not” to place Indian
children in non-Indian homes. Id. at 61. Dr. Gurwitt
presented
evidence
that
children
in
such
circumstances experience “a pervasive sense of
abandonment, a sense of depression, and a sense of
9
having been neglected.” Id. at 56. In joint written
testimony, the doctors further explained that placing
Indian children in homes away from the Indian
community may “severely affect” their development,
leading “to ethnic confusion and a pervasive sense of
abandonment with its attendant multiple roots and
ramifications.” Id. at 63.
Leaders
of
several
prominent
nonprofit
associations
provided
Congress
with
similar
testimony, and proffered a broad range of research.
For instance, Esther Mays, member of the Board of
Directors of the Native American Child Protection
Council, testified that various investigations revealed
that non-Indian parents were often “unable to relate
to [an] Indian child because of a lack of adequate
knowledge of the child’s background,” causing
“confusion” and “conflict . . . in the Indian child’s mind
as he attempts to relate to the custom, tradition,
values and the ways of a non-Indian world.” Id. at
159–60. And William Byler, executive director of the
Association on American Indian Affairs, discussed a
report addressing the relationship between the
removal of Indian children from Indian homes and
suicide levels. See id. at 6 (citing National Institute of
Mental Health, Suicide, Homicide, and Alcoholism
Among American Indians: Guidelines for Help (1973)).
The “social characteristics” that increased the risk of
suicide included whether the child “lived with a
number of ineffective or inappropriate parental
substitutes because of family disruption,” and
whether “he has spent time in boarding schools and
has been moved from one to another.” Id.
10
Congress also took into account the fact that
Indian children—as defined by ICWA to include those
enrolled in a Tribe, or both eligible for enrollment and
the child of a Tribe member—must inevitably make
difficult decisions about their “tribal and Indian
identity,” including their political relationship to the
Tribe. H.R. Rep. No. 95-1386, at 17 (1978). Given that
Indian children “because of their minority, cannot
make a reasoned decision” on their own about
whether to “become enrolled in [their] tribe,” id., a
relationship to a tribal member may aid the child’s
deliberations and thereby benefit the child.
II. Psychological
Research
Confirms
that
Indian Children Develop a More Stable Sense
of Identity and More Positive Life Outcomes
When Parented by Indian Adults.
Subsequent to Congress’s enactment of ICWA,
psychological research repeatedly has borne out the
statute’s basic premise. Continued research confirms
that it is generally in the best interests of Indian
children to be raised in Indian homes. As a general
matter, Indian caregivers are better able to transmit
shared norms, values, and cultural knowledge to
Indian children. Over decades, researchers have
established that Indian children benefit from the
formation of an Indian identity through the process of
enculturation—a process that involves engaging with
one’s own heritage and applying those traditional
norms to everyday living. Enculturation contributes
to the resiliency of Indian children, allowing them to
better withstand difficult life events and reducing the
prevalence of negative health outcomes—including
depression,
substance
use,
and
suicide—that
11
Congress intended to prevent by enacting ICWA’s
placement provisions. For Indian children, the chance
to be raised by Indian parents, be they family,
members of the child’s own Tribe, or members of
another Tribe, is a vital opportunity for enculturation.
A. Research Confirms that Enculturation
and the Formation of an Indian Identity
Build Resiliency and Self-Esteem Among
Indian Children.
It is well-established that members of the Indian
community disproportionately experience “traumatic
stressors” related to “discrimination, lifetime trauma,
[and] historical trauma.” 5 Those stressors are
“associated with negative health outcomes, including
substance use problems and depression.” 6 Indeed,
data confirm that various types of trauma among
Indians are significant factors contributing to high
rates of substance abuse, traumatic depression, and
PTSD.7 Those conditions have in turn “been shown to
have direct detrimental effects on physiology relevant
to obesity, diabetes, and cardiovascular disease.”8
5 Victoria M. O’Keefe et al., Understanding Indigenous Suicide
Through a Theoretical Lens: A Review of General, Culturally-
Based,
and
Indigenous
Frameworks,
55
Transcultural
Psychiatry 775, 783 (2018).
6 Id.
7 Karina L. Walters & Jane M. Simoni, Reconceptualizing Native
Women’s Health: An “Indigenist” Stress-Coping Model, Am. J.
Pub. Health 520, 522–23 (2002).
8 Christopher Wolsko et al., Stress, Coping, and Well-Being
Among the Yupik of the Yukon-Kuskokwim Delta: The Role of
12
Discrimination directed towards Indians has also
been shown to weaken resilience—i.e., “the capacity
to face challenges and to become somehow more
capable despite adverse experiences.”9 For example,
one
study
measured
the
effect
of
perceived
discrimination against Indians on the resilience of
Indian children in the fifth through eighth grades.10
In the study, “[p]erceived discrimination was
measured with a 10-item . . . scale designed to tap a
range of potential types and sources of discrimination
for youth.” 11 The study found that “[p]erceived
discrimination was a significant risk factor for lower
resilience. . . . Resilience declined by approximately
40%
for
each
increment
in
perceived
discrimination.”12 The findings “reinforce[d] recent
research that documents the pervasive impacts of
discrimination on adolescent and adult American
Indian depression and substance use.”13
Notably, however, research establishes that the
detrimental effects of discrimination and other
stressors are buffered through enculturation, i.e., a
“process where individuals learn about and identify
Enculturation and Acculturation, 66 Int’l J. Circumpolar Health
51, 52 (2007).
9 See Teresa D. LaFromboise et al., Family, Community, and
School Influences on Resilience Among American Indian
Adolescents in the Upper Midwest, 34 J. Cmty. Psych. 193, 194
(2006).
10 Id. at 193.
11 Id. at 199.
12 Id. at 202.
13 Id. at 203.
13
with their ethnic minority culture.”14 Enculturation
means engaging with “one’s traditional cultural
norms,” and incorporating those values into everyday
living.15 Developing a firm sense of identity through
enculturation has been shown to carry many mental
health benefits.16 Such “[c]ultural buffers . . . weaken
the
impact
of
the
traumatic
stressors
while
strengthening mental health outcomes.” 17 This
phenomenon is illustrated by the “stress-coping
model,” which “posits that the effect of life stressors
. . . on health is moderated by cultural factors such as
identity
attitudes
that
function
as
buffers,
strengthening psychological and emotional health and
mitigating the effects of stressors.”18
Substantial data support this understanding. For
example, in a study of 488 Yup’ik participants from 6
rural villages in the Yukon-Kuskokwim Delta in
Alaska, participants were surveyed to “assess[] a
variety of psychosocial characteristics.”19 The results
showed that “participants who reported identifying
more with the traditional Yup’ik way of life reported
greater happiness, using religion and spirituality
14 Wolsko, supra note 8, at 52.
15 Id.
16 See, e.g., Teresa D. LaFromboise et al., Psychological Impact of
Biculturalism: Evidence and Theory, 114 Psychological Bulletin
395, 403 (1993) (“The more integrated the individual’s identity,
the better he or she will be able to exhibit healthy coping
patterns.”).
17 O’Keefe, supra note 5, at 783.
18 Walters & Simoni, supra note 7, at 521.
19 Wolsko, supra note 8, at 54.
14
more to cope with stress, and using drugs and alcohol
less to cope with stress.”20 These findings remained
reliable after controlling for variables like age and
gender.21 By contrast, participants who reported less
enculturation “experienc[ed] greater psychosocial
stress and greater use of drugs and alcohol to cope
with stress.”22
Enculturation also has been shown to bolster
resilience among Indian children and protect against
the adverse effects of discrimination. For example, in
the previously mentioned study that found perceived
discrimination
was
associated
with
decreased
resilience, enculturation proved to be a buffer to
discrimination’s
adverse
effects,
and
actually
increased resilience in Indian children. In that study,
“[e]nculturation was measured by a set of 20 items
that included three basic overlapping elements: (a)
participation
in
traditional
activities,
(b)
identification with American Indian culture, and (c)
traditional spiritual involvement.” 23 The study
revealed that “[t]he strongest predictor of higher
levels of resilience was enculturation”: “For each
increment in enculturation, the youth were 1.8 times
more likely to be resilient.”24
20 Id. at 58.
21 Ibid.
22 Id.
23 LaFromboise, Family, Community, and School Influences on
Resilience, supra note 9, at 198.
24 Id. at 203–04.
15
A qualitative study of providers who serve
indigenous youth found that similar principles apply
when treating childhood trauma. 25 The providers
reported that “utiliz[ing] community connections and
traditional values when treating indigenous children”
may “assist their clients in coping with trauma.”26
Another longitudinal study of nearly 5,000 school-
aged children, including more than 1,300 Indian
children, found similar effects.
27 This study
determined that a strong sense of “ethnic identity was
inversely associated with depressive symptoms[] and
externalizing behavior,” such as getting in fights and
“break[ing] rules at home, school, or elsewhere.” 28
Ethnic identity likewise “was associated significantly
with increased levels of self-esteem and future
optimism” among the children included in the study.29
Indian communities with tools to promote
enculturation may be able to reduce one of the worst
outcomes for Indian children—suicide. In a 2006
study, researchers in Canada analyzed a database of
youth suicide rates spanning 14 years and 196
25 Shanley Nicolai & Merete Saus, Acknowledging the Past While
Looking to the Future: Conceptualizing Indigenous Child
Trauma, 92 J. Child Welfare 55, 61 (2013).
26 Id. at 70.
27 Paul R. Smokowski et al., Ethnic Identity and Mental Health
in American Indian Youth: Examining Mediation Pathways
Through Self-esteem, and Future Optimism, 43 J. Youth
Adolescence 343, 347 (2014).
28 Id. at 348–49.
29 Id. at 350.
16
indigenous communities. 30 The study found that
youth suicide rates were “unevenly distributed across
[indigenous] communities” in Canada.31 The study
“consistently observed” that communities with a
greater number of markers of cultural continuity—
including whether those communities exercised
“control over the provision of child and family
services”—were “associated with a decrease in the
rate of youth suicide.”32 Control over child services
alone was associated with a 25% decrease in the rate
of youth suicide.33 Other factors related to cultural
continuity had even more pronounced impacts.34
Indian youth who form strong identities and
communities
through
enculturation
benefit
significantly, as a recent meta-analysis of large
numbers of studies confirmed. The analysis—which
was published this year—examined 44 studies
concerning resilience among indigenous youth in the
United States and Canada, and found a wide array of
factors related to enculturation that promoted
resilience:
“[e]ngaging
in
cultural
activities”;
“[c]ommunity
relationships”;
“[p]ositive
cultural
identity”;
and
“[p]articipation
in
community
30 Christopher Lalonde, Identity Formation and Cultural
Resilience in Aboriginal Communities 59, in Promoting
Resilience in Child Welfare (Flynn, Dunning, Barber eds., 2006).
31 Id. at 65.
32 Id. at 66–67.
33 Ibid.
34 Id. at 66.
17
program[s],” among others. 35 Greater resilience
helped Indian children withstand stresses including
bullying, poverty, peer suicide, and racism.36
For Indian children who are unable to forge strong
ties to their Indian identities and communities, the
consequences can be significant. Those who
“indirectly acquire knowledge about the ways of [their
Tribe]. . . instead of from relatives during childhood”
may face rejection of their claims to tribal identity by
their peers.37 Researchers have noted that attempts
by Indian children to return to their Tribes (after
being
raised
in
non-Indian
families)
can
be
extraordinarily challenging.38 Such individuals often
lack “an understanding of their native language and
had no memory or comprehension of tribal history,
culture, customs, and strivings.”39
35 Olivia Heid et al., Indigenous Youth and Resilience in Canada
and the USA: A Scoping Review, 3 Adversity & Resilience Sci.
113, 139–40 tbl. 4 (2022).
36 Id. at 138–39.
37 Therese DeLeane O’Nell, Disciplined Hearts: History, Identity,
and Depression in an American Indian Community 62 (1998).
38 Irving N. Berlin, Anglo Adoptions of Native Americans:
Repurcussions in Adolescence, 17 J. Am. Acad. Child Pyschiatry
387, 388 (1978).
39 Id.
18
B. Placing Indian Children with Extended
Family, Tribal Members, or Other Indian
Adults
Facilitates
Their
Personal
Development and Is Tied to Positive Life
Outcomes.
The opportunity for an Indian child to be raised by
Indian parents and to learn from their experiences—
whether
those
parents
are
biological,
foster,
preadoptive, or adoptive—is a critical means of
enculturation for that child.
Many areas across the United States lack a
sizeable Indian population, which means that Indian
children placed in non-Indian homes will often lack
meaningful opportunities to engage with their Indian
heritage, culture, and identity. Several States—such
as Pennsylvania, Ohio, Illinois, Arkansas, and
Georgia—contain no federally-recognized Indian
Tribes.40 Without Indian parents, Indian children are
likely
to
live
in
predominantly
non-Indian
neighborhoods, and to be “isolated” from their Indian
heritage, culture, and identity.41 As a result, “urban
American Indian youth may well experience greater
stress in daily living” than those who live in Indian
40 See 87 Fed. Reg. 4,636, 4,637–41 (Jan. 28, 2022) (listing 347
federally recognized Tribes within the contiguous United States,
and no such Tribes in 14 States and the District of Columbia).
41 Raven Sinclair, Identity Lost and Found: Lessons from the
Sixties Scoop, 3 First Peoples Child & Fam. Rev. 65, 71 (2007).
19
communities “because it is difficult for them to access
social support networks.”42
A familial connection to the broader Indian
community is particularly important to allow
enculturation for an Indian child because extended
family and clan relationships are central to Indian
identity. As one scholar and social worker explains,
“Indian familial systems are based on extended family
and clans,” such that “it is virtually impossible to
separate the individual from family and family from
the community.”43 Indeed, “American Indian families
have an extensive lateral structure with both physical
and social proximity of aunts, uncles, and cousins
related through blood, marriage or adoption.” 44
Researchers have observed that “[e]xtended family
[is] key to the notion of child care, to the point that
children might have more than one person they could
call ‘mom’ or ‘dad.’” 45 Whole communities raising
children “le[ads] to . . . the children knowing that they
[are] connected and fit within that supportive
structure.”46 Whether they are raised by biological or
42 LaFromboise, Family, Community, and School Influences on
Resilience, supra note 9, at 194; see also John G. Red Horse et al.,
Family Preservation: Concepts in American Indian Communities
46 (2000) (observing that many Indian people who live away from
reservations are “not up to speed about Indian ways”).
43 Red Horse, supra note 42, at 13, 63.
44 Id. at 24.
45 Marilyn Poitras & Norman Zlotkin, An Overview of the
Recognition of Customary Adoption in Canada 25 (2013),
https://perma.cc/Q2LN-REMB.
46 Id. at 27.
20
adoptive Indian parents, “Indian children’s sense of
belonging is rooted in an understanding of their place
and responsibility within the intricate web of kinship
relationships,”
where
“the
value
of
familial
relationship denotes belonging and is paramount to
one’s identity.”47
These unique aspects of Indian culture, heritage,
identity, and experience may explain in part why the
adoption of Indian children by non-Indian families
tends to result in “negative outcomes,” even when
adoptions “in general result in positive outcomes for
the adoptee and their adoptive family.”48
Indeed, a qualitatitive study based on personal
testimonies solicited from adult Indian adoptees
revealed that Indian children “placed in a non-Indian
home for either foster care or adoption” suffered
psychological damage as adults. 49 The study
determined that there are “unique factors” related to
“Indian children being placed in non-Indian homes,
that create damaging effects in the later lives of the
children.”50 Those factors included “the loss of Indian
identity,” “the loss of family, culture, heritage,
language, spiritual beliefs, tribal affiliation and tribal
47 Red Horse, supra note 42, at 24 (internal citations and
quotation marks omitted).
48 Sinclair, supra note 21, at 71.
49 Carol Locust, Split Feathers: Adult American Indians Who
Were Placed in Non-Indian Families as Children, 44 Ont. Ass’n
Child’s Aid Soc’y 11, 11 (2000).
50 Id.
21
ceremonial experiences,” and “the experience of
discrimination from [a] dominant culture.”51
Other qualitative studies catalog the significant
effects of adoption and foster care on the well-being of
Indian children. In a Canadian study of 18 indigenous
adoptees, “[t]he major loss identified by adoptees . . .
was identity.” 52 Every participant in that study
described “loss of culture . . . as a factor that created
barriers for them.”53 “Not knowing who they were as
First Nations people—their customs, language, and
traditions—interfered with their link to their birth
families, and frustrated and embarrased them.” 54
Participants described trying to cope through use of
drugs and alcohol, and reported mental and physical
health problems that included addiction, anxiety,
eating disorders, suicidal ideation, and spiritual
confusion. 55 A later evaluation of the study data
concluded that “a causal relationship exists between
. . . community and ancestral knowledge[] and health
[and that] . . . loss of identity may contribute to
impaired physical, spiritual, mental, and emotional
health of First Nation adoptees.”56
51 Id. at 11–12.
52 Jeannine Carriere, Connectedness and Health for First Nation
Adoptees, 10 Paediatric Child Health 545, 547 (2005).
53 Id. at 548.
54 Id.
55 Id. at 547 tbl. 1, 548.
56 Jeannine Carriere, Maintaining Identities: The Soul Work of
Adoption and Aboriginal Children, 6 J. Pimatisiwin 61, 61
(2008).
22
In Maine, a joint commission of state and tribal
leaders from the Wabanaki Indian community
collected 159 statements from state employees, tribal
leaders, adoptees, and fostered children. 57 Indian
children raised in non-Indian homes expressed regret
over cultural loss. One Wabanaki fostered in a non-
Indian home explained “I was not allowed to grow up
with my culture, and I was made to feel ashamed of
my culture.” 58 Other children described being
prohibited from speaking Wabanaki languages or
being unable to access opportunities to learn about
their tribal heritage and affiliation: “I was never
allowed to go to powwows,” one Wabanaki child in
foster care told the commission: “There [were] never
any trips to the reservation.”59 Among its findings,
the commission determined that “[m]any tribal people
report finding significant strength in returning to
traditions, language, arts and other parts of their
culture.”60
The available data on kinship care—in which a
child is adopted or fostered by an adult with whom the
child shares a kinship bond—underscore these
trends. 61 For Indian children, kin caregivers take
57 Maine Wabanaki-State Child Welfare Truth & Reconciliation
Commission, Beyond the Mandate: Continuing the Conversation
14, 21, 76–80 (2015), https://perma.cc/NN65-C6EX.
58 Id. at 22.
59 Id. at 22, 45–46.
60 Id. at 65.
61 ICWA provides adoptive preference for an Indian child to “(1)
a member of the child’s extended family; (2) other members of
the Indian child’s tribe; or (3) other Indian families.” 25 U.S.C.
23
pride in “the ability to pass on traditional values,
culture, and ways of living” and that such caregiving
may succeed in part because it “ensure[s] cultural
continuity.”62 Meta-analysis shows that “kinship care
placements result in fewer behavioral and mental
health problems, as well as increased . . . maintenance
of biological ties.”63 These results may be because
“place[ment] with a family that matches . . . [a child’s]
cultural dimensions” helps to “reduce[] the trauma of
removal.”64
Similarly, in an analysis of 102 studies and
comprising data from 660,000 children, researchers
studied the effect of kinship care on 29 reported
outcomes.65 The findings of that study were “robust”
and confirmed the results of previous studies.66 The
researchers found that kinship care “enhance[s] the
§ 1915(a). Within the child welfare field, kinship care can have
a broader definition, including “the full-time nurturing and
protection of children who must be separated from their parents,
by relatives, members of their tribes or clans, godparents,
stepparents, or other adults who have a kinship bond with a
child.” Child Welfare League of America, Kinship Care: A
Natural Bridge 2 (1994).
62 Puneet Chawla Sahota, Kinship Care for Children who are
American Indian/Alaska Native: State of the Evidence, 97 Child
Welfare 63, 71, 74 (2019).
63 Id. at 66.
64 Id. at 67.
65 Mark Winokur, Amy Holtan & Keri E. Batchelder, Kinship
Care for the Safety, Permanency, and Well-Being of Children
Removed from the Home for Maltreatment (Review), Cochrane
Database of Systematic Reviews 9–10 (2014).
66 Id. at 20.
24
behavioural development, mental health functioning,
well-being, and placement stability of children”
relative to care by non-kin.67
The evidence indicates that, on balance, placing
Indian children with Indian parents facilitates their
opportunities
for
enculturation.
Because
enculturation in turn promotes resilience and self-
esteem, and mitigates harmful outcomes, such
placements will—all other things being equal—be in
the best interests of Indian children.
CONCLUSION
For the foregoing reasons, the Court should rule in
favor of the Federal and Tribal Petitioners.
Respectfully submitted,
August 19, 2022
Beth S. Brinkmann
Counsel of Record
Daniel G. Randolph
Matthew C. Quallen
COVINGTON & BURLING LLP
850 Tenth Street, NW
Washington, DC 20001
bbrinkmann@cov.com
(202) 662-6000
67 Id. at 22
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