WINNEBAGO-- Native Americans in Nebraska are sounding the alarm that their right to keep families together is being threatened. 

Earlier this year, the U.S. Supreme Court agreed to hear a case that could massively change child custody cases, by declaring the Indian Child Welfare Act (ICWA) unconstitutional. 

ICWA prevents children from being raised outside of their tribal nations. It was enacted because indigenous kids were being taken out of their cultures at alarming rates

This fall, the Supreme Court will hear Brackeen v. Haaland. It's a compression lawsuit of several cases now, involving plaintiffs who want to adopt Native children. The main case involves Chad and Jennifer Brackeen of Texas, who initially fostered a boy without realizing the Navajo tribe would not allow them to adopt him. 

Native American Rights Fund attorney Dan Lewerenz of the Iowa Tribe of Kansas & Nebraska explained how the Brackeens and other plaintiffs have four arguments against ICWA:

  1. That ICWA is a race-based policy in violation of equal protection.
  2. That ICWA falls outside of Congress' power over the Bureau of Indian Affairs because children are not commerce.
  3. That ICWA could rewrite other laws.
  4. That ICWA is commandeering

Depending on which argument -- if any -- won, Nebraska children may have different fates. The most dramatic change would come if the first argument (of race) was validated. 

"If the court found ICWA was racially motivated, it could overrule state statutes," Lewerenz said.

Some officials in Nebraska fear what that would mean for nations in Nebraska, such as Winnebago. 

"The Castro-Huerta decision that came down this term, that said states have criminal jurisdictions over non-natives in Indian Country (which is a technical term) was surprising. So I would not hazard to guess what [The USC] is going to do," said Winnebago Tribal Court Chief Judge Patrick Runge. "It's not unfair to say sovereignty is threatened."

Others are more confident that the race argument does not have a chance.

"Tribal status is a political affiliation. I'm a citizen of a tribe. Race is immutable," said Robert McEwan, the legal director of Nebraska Appleseed. "If it is determined to be race-based, that would upend hundreds of years of history," McEwan said. 

If other arguments against ICWA won, or only parts of ICWA were found to be unconstitutional, Nebraska custody cases may not look as different.  

Misty Flowers, executive director for the Nebraska Indian Child Welfare Coalition explained in a phone call to NCN that Nebraska and a few other states already have strong protections in place on top of ICWA. 

"Nebraska statutes are more refined. Our definition of a qualified witness must be [a tribal member] [...] We try to avoid non-Native involvement to make it non-biased," Flowers said. 

In 2015, Nebraska passed LB566, for the Nebraska Indian Child Welfare Act, to codify extra protections on top of ICWA.

McEwen said it was apparent back then that the problem needed to be addressed -- as he noted, indigenous people made up only 1% of Nebraska's population, yet 7-8% of the foster kid population. 

"A lot of children were being taken out of their homes and put in non-Native homes. At one time, one-third of the Native American population had been moved out of their home," McEwen said. 

"The actual congressional rates show there was an alarming rate of children removed from their homes, and not raised in their community or within their culture," Runge said. "Prior to ICWA, federal policy quite explicitly intended to remove children from their culture and to put them in boarding schools. That is the backdrop of this issue to remember."

Sunshine Bear of the Winnebago Tribe of Nebraska told NCN her life was saved by ICWA. She said she was taken as a baby by the town's sheriff -- but ICWA ensured her parents got her back.

"Had that not happened, I would have been raised a non-Native, and who knows what would happen? I don't know if you can tell but my complexion is very dark. I am not going to pass for a white person. So, growing up in a white community, without my culture or language, imagine that," Bear said.  

Now, she is imagining a future where her own grandson could be taken away. 

"God forbid something happened and he got into the system somehow, he wouldn't be - there wouldn't be guidelines to check with me," Bear said.

Bear said it reminds her of her tribe's historical trauma. In particular, she's reminded of the Winnebago artist Angel De Cora. As a child, De Cora wandered around Winnebago one day when a man on a train asked her if she'd ever been on a steam engine. Too young to know better, Cora had stepped on, and would not return to Winnebago after being kidnapped to Virginia until she was an adult, and her family was long gone. 

"ICWA is about keeping families together," Flowers said. "This is about treating the symptoms of a historical trauma."

It not only protects cultures and preserves nations though, others say. Some Nebraskans argue it sets a precedent for child welfare in the entire United States. In fact, the history of ICWA has made it known as a 'gold standard.'

"It pushed child welfare goals toward keeping children in their families," said Flowers.  

"It shows we need to focus on the kids, not the adoptive parents and what they want," McEwan seconded.

But the status of ICWA isn't just about children. 

"If the court takes this narrow view of Congress' power, that it can only manage economic activity, and that kids aren't an economic activity, it might set a standard for other Indian 'non-economic' activity," Lewerenz said. "And if it is a racial case, then almost every statute dealing with Indians -- every act within the last 200 years -- is unconstitutional."

Lewerenz said he fears that may be what the plaintiffs want.

"None of them care about Indian children. They are in this to obliterate the federal Indian power," he said.