Politicians, judges and social workers in Colorado are on the front lines of a brewing legal battle over a federal law that helps keep Native American children from being adopted outside their tribes.

They’ve filed legal arguments in support of keeping the 41-year-old Indian Child Welfare Act intact and rallied support in their communities. They fear an argument that the act is unconstitutional because it is based on race could trigger changes to a multitude of other laws that protect Native Americans, their land, their businesses and their culture.

“We’re not just another minority population,” Lucille Echohawk, executive director of the Denver Indian Family Resource Center, said. “We are a sovereign people. We have rights.”

Brackeen case

The case at issue centers around white Fort Worth, Texas, foster parents who wanted to adopt a boy, who is half Navajo and half Cherokee.

Jennifer and Chad Brackeen challenged the Indian Child Welfare Act, passed in 1978 to prevent state welfare and private adoption agencies from taking American Indian children from their communities.

In October 2018, a federal judge in Texas ruled in the Brackeens’ favor, declaring the Indian Child Welfare Act to be unconstitutional, in part because it was based on race.

The Fifth Circuit Court of Appeals in August reversed the judge’s decision, but then decided to rehear the case in January in front of all 16 circuit court judges.

No matter how the court rules this time, legal experts say, the losing side likely will appeal to the U.S. Supreme Court.

A shift to the right

For as long as the act has been in place, the Native American Rights Fund in Boulder has been there to see that it stays alive. The nonprofit was one of the first in the nation to specialize in Indian law, providing legal assistance to tribes, organizations and individuals across the country.

In the Brackeen case, the organization coordinated 325 tribes and 57 national and regional organizations, who filed a joint brief arguing to keep the act intact.

Challenges to the landmark law are nothing new, “but it’s quite unusual to get a constitutional challenge this late in the game,” Erin Dougherty Lynch, an attorney with the Native American Rights Fund, said.

So why is this coming up now? One reason: The makeup of the Supreme Court has shifted to the right.

The push to classify the Indian Child Welfare Act as a race-based law comes from the Goldwater Institute, a libertarian think tank, which has participated in 12 cases challenging the act during the past five years. The institute argues the 1978 act overrides child welfare law, making it difficult for states to intervene when a child is being abused.

“Our view is that the law was passed with good intentions,” Timothy Sandefur, Goldwater’s vice president for litigation, said. “But unfortunately, in today’s world, it ends up harming Indian children who are in need of protection.”

The argument that a Supreme Court ruling on the Indian Child Welfare Act would invalidate all of Indian law is a “total lie,” Sandefur said.

Native American organizations contend the institute’s efforts were never about child protection.

“There’s no serious discussion in their brief about better outcomes for Native children, which is another reason we assume it is to undermine all of Indian law at great expense to Indian children and families,” Dan Lewerenz, a Native American Rights Fund attorney, said.

“Can’t fathom us going back”

The tribes and Native American organizations have been joined by Colorado leaders to stand behind the law. Attorney General Phil Weiser twice has joined other state attorneys general in filing an amicus brief in support of the tribes.

“I believe the path to keeping in place protections is to recognize the historical context,” Weiser said in an interview. “We in Colorado have a history of making real efforts to honor, work with and support both the tribes here as well as any Native American who lives in Colorado.”

Advocates say the law works for Colorado’s Native American tribes.

“The state of Colorado, in my experience in recent years, has been very focused on the importance of complying with the law,” Echohawk, whose organization works with the courts to serve Native families in the child welfare system, said.

Colorado’s two tribes — the Ute Mountain Utes and Southern Utes — have reservations in the southwest corner of the state, but most tribal members live on the Front Range. As a result, the state has Indian Child Welfare Act courts in Denver and Adams County — more than any other state.

Judge Katherine Delgado, who presides over child welfare cases in Adams County, helped create the county’s specialized court two years ago. Every other Tuesday afternoon, Delgado’s courtroom exclusively adjudicates cases related to Native American families, bringing in tribal court specialists, Native American resource centers, social services and attorneys for the children.

Delgado said the judicial system for Native families has come a long way since the specialized courts were started.

“It’s frightening to me,” Delgado said, regarding the prospect that the law could be overturned. “This is about sovereignty; it’s not race-based. When you have children involved in the child welfare system who are not placed with people who look like them, who understand where they come form, we do such a disservice to them.”