“Can you tell the court a little bit about what she was like as a baby?”
It was December 2018, and Robyn Bradshaw sat on the witness stand in the Hennepin County Juvenile Justice Center in Minneapolis, fighting for custody of her granddaughter. The night before, Bradshaw had attended a support ceremony with other members of her tribe, the White Earth Band of Ojibwa, to give her strength through the hearing. But as she answered questions from her lawyer, Bradshaw’s breath was short and her heart raced. The face of her granddaughter, a quick-witted, energetic 7-year-old with big brown eyes and thick black curls, flashed in her mind. So, too, did the thought that had resurfaced countless times over the year: I cannot lose her again.
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The girl, who goes by P.S. in court records, was born on a summer day in 2011. P.S. and her mother, Suzanne, moved in with Bradshaw, who cared for the baby while Suzanne worked as a bus driver and bank teller. P.S. turned into a lively toddler who shrieked as she bounced in the crib and chased her grandmother around the kitchen. She loved to swim and play with her cousins who lived nearby. For more than three years, according to court documents Bradshaw later filed, “P.S. was raised in a loving and stable home with Ms. Bradshaw and P.S.’s mother as active, fulltime caregivers.”
Everything changed in 2014, when Suzanne plummeted into drug addiction. Without her daughter’s income, Bradshaw struggled to pay rent, and the family was evicted. Bradshaw and P.S. crashed with friends, and then with a cousin. At one point, they were turned away from a shelter because Bradshaw couldn’t prove that she was P.S.’s biological grandmother. As Bradshaw looked for stable housing, she asked P.S.’s father to temporarily care for the 3-year-old. But things went from bad to worse: One August morning, Bradshaw received a call from Suzanne, who was being held in jail. She and P.S.’s father had been arrested on drug charges, and P.S. had been taken into state custody. Bradshaw immediately called the county to ask when she could pick up her granddaughter.
It is easy to imagine an outcome where Bradshaw brought P.S. home and went on to raise her, possibly with some governmental assistance. This would line up with state and federal guidance, which both recommend that children remain with relatives unless those family members pose an immediate safety risk. Bradshaw had additional legal force on her side: the Indian Child Welfare Act, the landmark 1978 legislation aimed at keeping Native families and communities intact. ICWA adds guardrails at every step of a child welfare case, raising the standards needed to remove a child and mandating that, when Native children are removed, states make proactive efforts to place the children with other family or members of the same tribe.
Instead, the county argued that P.S. couldn’t stay with her grandmother because Bradshaw had a 15-year-old felony conviction for receipt of stolen property. Plus, Bradshaw was flagged for having been involved with Child Protective Services before, when Suzanne was 16. For the next two years, P.S. was placed in six different homes. In the summer of 2016, she landed in the home of a couple named Danielle and Jason Clifford, who wanted to adopt her.
The subsequent custody battle for P.S.—with Bradshaw on one side, and the Cliffords on the other—is one of three lawsuits that now form the basis of the Supreme Court case known as Brackeen v. Haaland. In all three cases, non-Native foster parents wanted to adopt Native children. Two of the three were ultimately successful in doing so, but all say they encountered unconstitutional barriers because of ICWA. Now, the foster parents are suing the federal government in an attempt to overturn the law, which they say represents race-based discrimination and an overly intrusive federal government. They have found support from attorneys general in three states, along with conservative groups like the Cato Institute, the Goldwater Institute, and the Bradley Foundation.
ICWA supporters, meanwhile, counter that the law’s focus on placing kids with their kin is the gold standard for child welfare policy reform. “All children would benefit from such a commitment,” reads an amicus brief in support of the defendants, filed by dozens of child welfare and adoption organizations. Many legal experts argue that the law, like much of Native sovereignty, is based not on race, but rather on tribes’ unique political status. A ruling against ICWA could pave the way for future attempts to erode Native sovereignty, leading to “the unraveling of the legal structure that defends the rights of Indigenous nations in this country,” says Rebecca Nagle, host of This Land, an investigative podcast about Native issues that devoted a season to the case.
During oral arguments in November, the three liberal justices and Justice Neil Gorsuch seemed to share Nagle’s concern. Gorsuch, a consistent advocate of tribal rights, noted that if ICWA were ruled unconstitutional, then health care provisions, environmental regulations, and access to sacred sites for Native Americans “would seem to go.” He warned the plaintiffs’ lawyer, “We’re going to be busy, counsel, if this is the line we’re going to draw. Very, very busy.”
P.S.’s case shows, with striking clarity, the two possible fates that could result from the Supreme Court decision, which is expected in the spring. Because of procedural mixups, P.S.’s case didn’t qualify as an ICWA case for the first two years she was in state custody. During that time, as P.S. went from one foster home to the next, Bradshaw’s contact with P.S. was minimized and eventually cut off altogether. It was all but certain that the Cliffords would adopt P.S. And then, the case took a dramatic turn: Suddenly it did qualify as an ICWA case. Bradshaw, once deemed dangerous, was considered a viable caregiver after all. In the story of a single family, then, the stakes of the Supreme Court decision come into sharp relief: what happens in a world with ICWA, and what happens in a world without it.
Bradshaw is all too familiar with family separation. When she was about 10, she was forced to attend an Indian boarding school, part of a 150-year effort to strip Native children of their identities and reform them in the image of white Christian ideals. The directive of Richard Henry Pratt, the military officer who founded the first such school in 1879, came to define this effort: “Kill the Indian…and save the man.” By the mid-1920s, an estimated 61,000 children—about four-fifths of Native children—attended the schools.
This part of her life is hazy to Bradshaw, and she has no desire to dwell on it. “I never want to think about it again,” she said the first time we spoke. What she knows is that, one week, she was living at home in North Minneapolis, helping her mom take care of her younger siblings, and the next week, she was very far from home—in Oklahoma, she thinks—at a boarding school. She ran away from the school twice before being reunited with her family after four months.
Just as the boarding school era came to a close in the 1960s, government programs emerged to place Native children with non-Native adoptive families. “Child welfare systems picked up where the boarding schools left off,” says David Simmons, director of government affairs and advocacy at the National Indian Child Welfare Association. “They took away the things that Native people had used to help them survive and thrive—teaching young people how to parent, what their role in the community was.” A 1966 Bureau of Indian Affairs press release for the Indian Adoption Project read, “One little, two little, three little Indians—and 206 more—are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken the Indian waifs as their own.” But alarming statistics soon emerged: Between 25 and 35 percent of all Native children were being separated from their families and put in foster homes, adoptive homes, or institutions, according to surveys by the Association on American Indian Affairs.
The debate that ultimately led to ICWA’s passage in 1978 is at the heart of the Supreme Court case today: “Who decides whether an Indian child needs to be removed from his or her home, and who decides where and how that child is to be raised?” read a 1976 report submitted to the Senate’s Committee on Indian Affairs. The decision, the committee concluded, is “inherently biased by the cultural setting of the decisionmaker.” Social workers making custody decisions may be “poorly trained, often biased or judgmental,” and they impose “cultural and familial values which are often opposed to values held by the Indian family.”
This concept, that a person’s background informs their opinion of how to raise a child, is simple enough to grasp, but continues to bedevil the child welfare system—a system in which predominantly white, middle-and upper-class judges and CPS employees make quick, life-altering decisions about the living situations of disproportionately poor, Black and brown families. The vast majority of CPS investigations are not for physical abuse, but for the broad, subjective allegation of “neglect.” While one caseworker might encounter an empty fridge, or a young child home alone, or a parent with a history of drugs, and decide the parent is neglectful, another caseworker might decide the family needs help, and a third might decide there’s no problem to begin with. Often, the conclusion that the caseworker draws is as much a reflection of the caseworker as it is of the family under investigation.
ICWA aimed to change the decision makers in child welfare cases, requiring the caseworkers and lawyers to have a background in Native history and culture. Except in emergency situations, a child can be removed from the home only with the support of a “qualified expert witness” familiar with the child’s tribe. Tribes can become legal parties in the case; research has shown that tribal presence lessens the amount of time kids spend in foster care. Instead of the “reasonable efforts” the state is required to make to reunite children with their families in most child welfare cases, ICWA-trained caseworkers must make “active efforts” to prevent the breakup of Native families.
“My approach to families is I ask them, ‘How can I help you?’” says Lee Goodman, a White Earth social worker who works on ICWA cases. “I had one particular case where the mother looked at me and said, ‘Nobody ever asked me that before.’”
After P.S. was taken into state custody, Bradshaw amassed a long list of relatives and friends who could serve as foster parents. She reached out to pro bono lawyers and nonprofit contacts who might be able to help her. She repeatedly asked the county to be the girl’s caregiver. “I called, I called and I called and I called and they kept hanging up on me,” she later testified, according to documents Mother Jones obtained from the Hennepin County District Court in Minnesota, one of the few states where family court proceedings are publicly available. “It was ‘no.’ Everything was ‘no’ all the time.”
A district court judge later found that this was a key moment when things went wrong. County social workers failed to inform Bradshaw that it was possible for her to apply to set aside her criminal offense so she could foster her granddaughter. County officials either didn’t look into or denied each of Bradshaw’s foster placement suggestions—including P.S.’s grandfather, on the grounds that he didn’t know her well enough.
Perhaps most importantly, both Hennepin County and the White Earth tribe failed to identify that the case qualified under ICWA. The law applies only to children who are members of tribes or eligible to enroll in tribes, and when Hennepin County reached out to White Earth’s child services division in 2015, its director said P.S. wasn’t eligible. Suzanne was not enrolled, and, in its correspondence with White Earth, the county neglected to mention that Bradshaw, who was a tribal member, was seeking custody.
For the next two years, as P.S. bounced from one home to the next, she suffered from separation anxiety disorder, a condition often characterized in children by extreme distress about being away from loved ones, clinginess, and reluctance to be alone.
Her progress was closely monitored by her guardian ad litem, a trained volunteer named Barbara Reis. Guardians ad litem play key roles in child welfare proceedings: They visit foster homes, check in with therapists, county caseworkers, and teachers, and, armed with these observations, represent the interests of the child in court proceedings. Reis, a 67-year-old white woman who’d retired after a career in education, would ultimately log more than 350 hours on P.S.’s case. From her first time encountering Bradshaw, at the initial hearing in the fall of 2014, Reis was skeptical.
“From the beginning, and I don’t mean to sound harsh, but I feel I need to speak the truth, there were many small but significant red flags that appeared with Ms. Bradshaw,” Reis later testified, pointing to Bradshaw’s bouts of homelessness and her criminal history. “I do have concerns and it’s based on the fact that I myself am a parent, I myself am a former teacher. I know the types of things that are essential to develop, raise kids in this day and age.” Bradshaw, she concluded, was not equipped to care for P.S.
Bradshaw’s contact with her granddaughter during this period was sporadic. Only one foster parent, a distant family friend, allowed her to visit, and for those few months, Bradshaw visited P.S. everyday. But when the foster parent complained that Bradshaw was too involved, county officials limited Bradshaw’s contact. She could see her granddaughter only when Suzanne visited, and Suzanne was in and out of jail and rehab.
In the summer of 2016, the county terminated Suzanne’s parental rights. Termination has been analogized to the civil death penalty: Typically, it means cutting off all ties with biological family. Bradshaw went with Suzanne to her hourlong “goodbye visit” with P.S. at the county CPS offices. P.S.’s father and grandfather came too. “We sat there, we took photos, we hugged each other, loved each other up,” Bradshaw remembers. She couldn’t stop thinking about her granddaughter’s uncertain future: Would she go from foster home to foster home? Would she become one of those CPS horror stories you hear about on the news? Who was going to take in this child, and how would they treat her?
Parental termination freed P.S. for adoption, and the county already had a family in mind: Danielle and Jason Clifford. The Cliffords met salsa dancing while students at Bethel University, a small Christian school in Minnesota. Jason is white; Danielle has Native ancestry on her father’s side, though she doesn’t identify as Native American in federal court documents. When the couple found out that they couldn’t have biological children, they decided that adopting a foster child was “the way that God had ordained for us to have a family,” Danielle testified. “We had a lot of prayer over that.”
Reis and a county social worker, Jodi Castillo, met with the Cliffords and told the couple they were looking for a “forever home” for 5-year-old P.S. The Cliffords were told that there had been an “extensive relative search” and that while P.S.’s grandmother was interested in adopting her, that wasn’t an option “for many reasons,” said Danielle. “We weren’t given those reasons.” Reis and Castillo urged the Cliffords to avoid contact with Bradshaw. “I thought she would be a bad influence and that she would tear things apart if she were to become a part of their life,” Reis later recalled. (Both Reis and the Cliffords declined to be interviewed for this story.)
By all accounts, the Cliffords provided a loving, supportive environment for P.S. The first time they met, Danielle said, “we clicked. It was like she had been meant to be a part of our family.” The Cliffords enrolled P.S. in Girl Scouts and dance classes and took her to parks and museums. Danielle, then a stay-at-home mom, went through a pre-K workbook with P.S. for an hour each day. The family attended church, where Danielle and Jason were leaders in the kids’ ministry. P.S. “loved going and singing and learning about Jesus and doing crafts,” Danielle testified. At night, the couple read books and prayed with P.S., who slept in a lofted, princess-themed bed with a slide. P.S. called Danielle and Jason “Mommy” and “Daddy.”
Reis was thrilled. “P.S. moved into this home in July and is thriving,” she wrote in a 2017 progress report. “This is the perfect placement for her.”
The Cliffords tried to teach the girl about her heritage, taking her to a Mother’s Day powwow, making wild rice, and reading Native folklore. Danielle tried to educate herself as well, reading everything from history books about the Trail of Tears to Everything You Wanted to Know About Indians But Were Afraid to Ask. “Unfortunately, there aren’t very many history books from a Native perspective,” she testified. “I had difficulty finding very many.”
Still, P.S. had trouble adjusting. She often dissociated, staring into space. She threw tantrums, sometimes for more than an hour. Castillo and Reis told the Cliffords that P.S. needed to see a therapist, but all the providers they recommended had long waitlists. Through their church, Danielle found a therapist named Samantha Colai, who had recently finished training at a Christian counseling center. P.S. was her first Native client, so she, too, tried to educate herself. She read Bury My Heart at Wounded Knee, she said, “to get an understanding of what happens within the culture and within US history.” She sought out a Native mentor to help her navigate P.S.’s case. Based on what a county social worker had told her, Colai thought the Cliffords were adopting P.S., and she worked with them on long-term strategies for prioritizing predictability and structure.
Several times, the Cliffords asked Reis if they should allow Bradshaw to visit her granddaughter, as Bradshaw had repeatedly requested. But Reis was steadfast in her position: “I felt like there was some dysfunction happening and I felt that grandmother wouldn’t have good judgment,” she later testified.
So the Cliffords kept their distance. “We were told that [P.S.]’s extended family was not safe,” said Danielle. “Of course, we weren’t going to put a child with someone who wasn’t safe.” An adoption agreement was drawn up.
Bradshaw, however, hadn’t given up hope. Around the same time that P.S. first arrived in the Cliffords’ home, Bradshaw walked into the Upper Midwest American Indian Center, a nonprofit in Minneapolis that supports Native families. She explained the situation: how she had raised P.S., how the county had denied her as a foster placement, and how her tribe had remained uninvolved.
Upper Midwest jumped into action. That day, a foster care licensing worker named Bobbi Rodriguez spent two hours helping Bradshaw fill out the application necessary to apply for a foster license and set aside her criminal record. “There was nothing on her background that was alarming to me,” Rodriguez later testified. Rather than dismiss Bradshaw as unqualified to be a foster parent because of her criminal history, Rodriguez saw her as a potential caregiver who needed to show that her background wouldn’t be a problem.
When Upper Midwest alerted White Earth that a member of the tribe was seeking custody of her granddaughter, White Earth sprang into action, too. A child being adopted out of the tribe is no small matter, testified Alan Roy, secretary treasurer of White Earth. Not only does the child risk losing their connection to their community, but the tribe risks losing another member. When families rupture, said Roy, systemic problems emerge, from unemployment to substance use to educational challenges. “Everything is affected,” he said, “if this child were not to have a relationship with her people. We need every child. There’s only so many of us.”
In early 2017, White Earth wrote the court, indicating P.S. was eligible for membership after all, and moved to intervene as a party in the case. Suddenly, what had been a typical county child welfare case became an ICWA case. Until White Earth’s involvement, the county had supported the Cliffords in their plan to adopt P.S. But once ICWA applied, the county reversed course: It supported what the tribe wanted, and the tribe wanted Bradshaw to have custody of her granddaughter.
In the summer of 2017, after not seeing P.S. for a year, Bradshaw was allowed a supervised visit. It proved to be one of countless interactions that functioned like a Rorschach test: Those on both sides of the custody battle had dramatically different conclusions about what happened. To Bradshaw, the visit was an occasion to celebrate. “I brought her an abundance of gifts that I saved up over the year,” Bradshaw testified. She brought crayons, coloring books, stuffed animals, games, and shampoo for kids. She also brought a note from Suzanne, which Bradshaw didn’t know she wasn’t allowed to do. “Grandma is fighting hard for you and we’re all standing behind her,” it read. “You’ve [been] such a brave and strong girl for too long. Just keep it up for a little while longer. Love to the moon & back, always & forever.”
To the Cliffords, all this—especially the letter from Suzanne—suggested Bradshaw had problems with boundaries. The presents, said Jason, were “random items” from a dollar store. “We have previously asked Robyn not to send large quantities of gifts, as this is now the fourth large load of gifts,” wrote the Cliffords in an affidavit. The previous Christmas, for example, Bradshaw had asked if she and Suzanne could send a present. After discussions with Colai, Reis, and Castillo, the Cliffords decided to allow Bradshaw and Suzanne to “send a gift that would be given as a gift from Santa.” Bradshaw and Suzanne were provided a list of “reasonable gifts,” and given instructions to leave the tags and packaging on, and include no cards. Instead, Bradshaw sent enough gifts to fill a car trunk. “None of those things were items on [P.S.’s] wish list, numerous items did not have original packaging or tags and there were many hidden messages,” reads the affidavit.
Still, over the fall of 2017, visits with Bradshaw progressed to overnight and weekend stays. P.S. shuttled not only between caretakers, but between socioeconomic realities. As is often the case, the parents wanting to adopt were more financially stable than the child’s relatives. Bradshaw relied on Social Security, lived in public housing, and drove a car that often broke down. For a time, she had one bed; when P.S. came for sleepovers, the two would snuggle and read books before Bradshaw, who had arthritis, retired to the sofa so P.S. could have the bed to herself.
According to the Cliffords, the visits with Bradshaw came at a cost to P.S.’s diet—“We had been working on a very consistent food schedule,” Jason testified—and more importantly, her mental health. After visits with Bradshaw, P.S. became emotionally volatile, breaking down at the smallest thing. The Cliffords were constantly encouraging P.S. to take deep breaths, to listen, and to follow the rules, testified Danielle.
When P.S. moved in with the Cliffords, the couple had put together a photo album of P.S.’s biological family. P.S. hadn’t expressed interest in it in months. Yet after the first visit with Bradshaw, she sat on the floor in tears as she leafed through the photos. “Since the visit, she has walked around with the photo book, several times, open to pictures of her with either her mother or father,” reads the affidavit. She became more clingy with the Cliffords, throwing tantrums when one or the other left the house. But she also asked why she had to wait so many days to see her grandmother. “She keeps saying she wants her mom and wants to move back in with her mom,” according to the affidavit. “[P.S.] has had multiple times where she has cried so hard that she has needed to be held and rocked for a long time until she is able to calm herself.”
In January 2018, the state set aside Bradshaw’s felony conviction, allowing her to become a licensed foster parent. At long last, P.S. moved in with Bradshaw. It was a “major, major” change, says Bradshaw. The two soon settled into a routine. On weekdays, P.S. ate breakfast while she watched her favorite cartoons. She could choose between mini pancakes or waffles, cereal, hard-boiled eggs—“whatever she wants,” testified Bradshaw. They walked with their puppy to catch the school bus. P.S. kept busy after school: a nutrition program on Mondays, tutoring on Tuesdays, ballet on Wednesdays, game night on Fridays.
Because a key element of ICWA is aligning foster placements with Native cultural norms, P.S. started seeing a new therapist at the Indian Health Board named Megan Eastman. Eastman, who is Native and white, had trained to adapt common therapeutic practices, like cognitive behavioral therapy, for Native populations. She noticed similar behaviors as Colai, like anxiety related to separation. But her style was different: In court, she described her goal as to “help be a healer and help to repair families and keep families together.”
In the year that passed before a judge ultimately decided who should adopt the girl, Bradshaw and P.S. met regularly with both Reis and ICWA caseworkers. They had strikingly different interpretations of how the first grader and her grandmother were doing.
Take, for example, the home visits: Joseph Thompson, a county social worker who specializes in ICWA cases, observed that “the home is neatly appointed. There’s always food available. [P.S.] appears to be happy and doing well.”
Reis, meanwhile, worried that she was eating too much junk food and not getting enough exercise. “I observed that she has gained weight around her bottom,” she noted on a visit in April 2018. “I observed 3 Easter baskets filled with candy in the home. [P.S.] was sitting watching TV eating graham crackers.”
There was also disagreement around structure: Reis took issue with the fact that P.S. hadn’t gone to summer school, and that she didn’t have clear expectations. “A parent says…‘You gotta do this and gotta do that,’ and you just develop thick skin,” testified Reis.
Stephen Luzar, a White Earth psychologist, saw the situation differently: In Native communities, he said, children “are allowed to run free, explore, develop their own thoughts, emotions, ideas on whatever the topic is, and to come back and check in,” he said. It’s still possible, he noted, to have boundaries and consistency with this parenting style.
Even P.S.’s demeanor was hotly debated. To Reis, P.S. seemed distracted and withdrawn. “She did not sing to herself like I have observed at the Cliffords, or twirl around in a happy, playful way,” she wrote in her notes. “The light in her eyes seemed dimmer, the sparkle less bright.” Meanwhile, Priscilla Day, a child welfare consultant who works with Native families, said the opposite: “She was singing and dancing. She wanted to show us dance steps. She would make jokes and had a sense of humor.”
There may have been more than just different cultural interpretations at play. As Luzar pointed out, it wasn’t surprising that Bradshaw and P.S. were sometimes guarded under observation. “Based on how Natives have been treated in this country over 500 years,” he said, many have a “healthy paranoia” when interacting with government authorities. Bradshaw “knows that everything that she says will be written down, or everything that she says will be analyzed, and everything that she says will be used, potentially, in court.” As a result, he said, often “Native people will just not say anything.”
As P.S. got used to her new home, the Cliffords mounted a legal battle for custody of the girl. They weren’t the only foster parents frustrated with ICWA: A similar battle was playing out 1,000 miles south, in Fort Worth, Texas, where Jennifer and Chad Brackeen sought custody of a Native child in their care. Like the Cliffords, the Brackeens were motivated by faith: The white evangelical couple had come to believe that welcoming foster children into their well-appointed home was one way, they told the New York Times in 2019, to “rectify our blessings.” But unlike the Cliffords, the Brackeens were successful in their custody battle. When a judge ordered that their foster son be adopted by a Navajo couple, the Brackeens pushed back, obtaining an emergency stay. Eventually, the tribe backed out, clearing the way for the Brackeens’ adoption.
Nevertheless, days before the tribe conceded, the couple filed a federal lawsuit aimed at overturning ICWA. Their case transformed from a local custody battle to something different altogether when Texas Attorney General Ken Paxton, a Trump-backed mainstay in conservative legal battles, joined as a co-plaintiff. The subsequent fight is the result of a yearslong effort by a coterie of conservative groups to kill off ICWA. Gibson Dunn, the law firm representing the Brackeens pro bono, is perhaps best known for defending Facebook in the Cambridge Analytica case, or advocating for George W. Bush in Bush v. Gore, but it has notably represented several plaintiffs taking issue with laws specific to Native communities, including the corporation behind the Dakota Access pipeline. It was Gibson Dunn, which shares a revolving door with the Texas attorney general’s office, that alerted Paxton’s office to the Brackeens’ case.
The same day that the Brackeens and Texas filed the federal lawsuit, Nagle reports, Paxton’s office sent an email blast to other Republican attorneys general, inviting them to join the case. The subject line read, “New Federalism Case Opportunity.” Soon, Louisiana and Indiana had signed on, joining conservative groups like the Goldwater Institute, an Arizona think tank that has argued against ICWA in more than a dozen cases since 2015. Meanwhile, the legal team reached out to families filing similar suits—thus finding the Cliffords, who signed on as co-plaintiffs.
The plaintiffs’ complaint describes P.S.’s situation in two short paragraphs. The Cliffords’ home was “the only stable home [P.S.] has ever known,” whereas Bradshaw was “the grandparent previously found to be an unfit placement by the state.” The plaintiffs fail to mention that Bradshaw was P.S.’s full-time caregiver for the first three years of her life, or her constant fight to reunite with her granddaughter. The complaint blames ICWA for the “ordeal” suffered by the Cliffords and P.S.
The Brackeens were ideal plaintiffs: Their case fell under the jurisdiction of Texas federal Judge Reed O’Connor, who has a long history of siding with Republican attorneys general filing ideological lawsuits in cases that make their way to the Supreme Court. O’Connor also struck down the Affordable Care Act, ruled against DACA, and rescinded protections for transgender youth. Between 2015 and 2018, nearly half of the lawsuits that Paxton filed to overturn federal laws were heard by O’Connor. It came as no surprise when, in October 2018, O’Connor ruled that ICWA violates the Fifth Amendment’s equal protection guarantee, paving the way for the appeal to the Supreme Court.
The Supreme Court could strike down ICWA, but its ruling won’t affect who has custody of P.S.; that was decided in December 2018. Over the course of five days, 20 witnesses testified in an evidentiary hearing, picking apart her grades, her weight, her social life, her therapy appointments, her hobbies. Lawyers for the county, White Earth, and Bradshaw argued that P.S. was happy and healthy; Reis and lawyers for the Cliffords suggested she was neither. (Notably, Reis had softened her opinion on Bradshaw, testifying, “I have apologized to her, and I see that she is a very strong force, she’s very gentle and loving with [P.S.].”)
On January 17, 2019, Judge Angela Willms released her decision. She was pointed in her critique of the county, for not seriously considering Bradshaw from the start; of White Earth, for failing to realize that Bradshaw was a member; and of Reis, whose conclusions were not credible, as her behavior suggested she “will never believe Ms. Bradshaw is a successful parent no matter what she does.”
If not for these failures, “none of this would have happened,” wrote Willms. “Instead, P.S. has been traumatized by our system due to numerous failed placements, Ms. Bradshaw has been equally traumatized by the same system that for years ignored her as a placement option for her granddaughter, and the Cliffords have lost a child whom they love and consider their own.”
Willms found that both Bradshaw and the Cliffords could meet P.S.’s needs, and that they both loved her. But while the Cliffords could provide ample financial resources, they could not provide P.S. with bloodlines, legacy, culture, and roots. The best interest of P.S., ruled Willms, was for her to be adopted by Bradshaw.
Midway through the hearing, Gertrude Buckanaga, the executive director of Upper Midwest, took the stand. She recalled a moment when P.S. was still living with the Cliffords and beginning to have supervised visitations with Bradshaw at Upper Midwest. Buckanaga, who had also been sent to an Indian boarding school as a child, chatted with Bradshaw and P.S. as they ate lunch and played. During the visit, P.S., then 6 years old, told Buckanaga that she remembered things from when she lived with Bradshaw as a toddler, like learning to Indian dance at a powwow with her cousins.
To an outsider, the moment might have been easy to miss. A Native girl, going on three years of separation from her family, recalling the powwow to two Native women, who had themselves been separated from their own families as children.
“I said, ‘Oh, I think that’s great.’ I says, ‘You know how to dance? Do you want to show us how?’” Buckanaga said.
And then, in a moment that brought Buckanaga to tears, the two women watched as P.S. put her hands on her hips and began to dance.
In the four years since Bradshaw adopted her granddaughter, P.S. has turned into a spirited sixth grader who loves choir, math class, and skating. “She likes to do everything,” Bradshaw says. “She keeps me on my toes.”
The two are now in the awkward position of having their private lives at the center of a Supreme Court case for which they are neither plaintiffs nor defendants. Bradshaw says she is—of course—concerned about the future of ICWA and Native sovereignty, but her primary concern is P.S.’s privacy. “I want to keep my granddaughter out of it,” she says.
The headlines have flattened the Cliffords and Bradshaw into two-dimensional combatants in a high-stakes custody battle, but the reality of their relationship is far more layered: Every other weekend, P.S. spends the night at the Cliffords’ house. After Bradshaw adopted her granddaughter, P.S. repeatedly asked Bradshaw to see them. Bradshaw took some time to think about it. The situation seemed messy and uncomfortable, but in the end, the decision was straight-forward: P.S. wanted a relationship with the Cliffords, and Bradshaw wanted P.S. to be happy.
Plus, Bradshaw feels for the couple. After all, she knows what it’s like to almost lose a child.
