Politics & Policy

Whose Welfare?

The injustice of the Indian Child Welfare Act.

If there is ever a contest for the law with the most grossly misleading title, the Indian Child Welfare Act of 1978 should be a prime candidate, because the last thing this act protects is the welfare of Indian children.

The theory behind the Indian Child Welfare Act is that an American Indian child should be raised in an American Indian culture.

Based on that theory, a newborn baby of American Indian ancestry, who was adopted immediately after birth by a white couple, was, at 27 months of age, taken away from the only parents she had ever known and given to her father.

Apparently, the tribe has rights under the Indian Child Welfare Act. If this child were of any other race, a court would be free to decide the case on the basis of whatever was in the best interests of the child. Instead, the child is treated almost as property, contrary to the 13th Amendment, which outlawed slavery.

Fortunately, the legal issues growing out of this case are now before the Supreme Court of the United States. We can only hope that the justices will use their wisdom, instead of their cleverness, to decide this case.

#ad#The wisdom of Solomon provided a good example many centuries ago, in a case where two women each claimed to be the mother of a child and each demanded custody. Since he did not know who the real mother was, King Solomon said that he would cut the child in half and give each mother her half.

When one of the women dropped her claim in order to spare the child’s life, he knew that she was the real mother. Anyone who would ruin a helpless child’s life in order to assert her own legal prerogatives, or to protect the tribe’s turf, raises very serious questions about what kind of parent she is.

The question is not just which home is better, but whether the child will ever feel secure in any home again after the shock of being forcibly taken away.

The welfare of a flesh-and-blood human being should trump theories about cultures — especially in the case of a two-year-old child who has been torn away from the only parents she has ever known, and treated as a pawn in a legalistic game.

This little girl is just the latest in a long line of Indian children who have been ripped out of the only family they have ever known and given to someone who is a stranger to them, often to live on an Indian reservation that is foreign to them. This has happened even to children who have spent a decade or more with a family to which they have become attached and which is attached to them.

There have already been too many scenes of weeping and frightened children, crying out in vain for the only mother and father they know, as they are forcibly dragged away.

Whatever the merits or demerits of various theories about culture, they are still just theories. But too many people put their pet theories ahead of flesh-and-blood human beings.

One of the rationales for the Indian Child Welfare Act is that, in the past, Indian children were wantonly wrested from their Indian parents and sent off to be raised by non-Indians. But nothing we can do today can undo the wrongs of the past — especially not by creating the same wrongs again, in reverse.

While those who are most victimized by the so-called Indian Child Welfare Act are the children ripped out of their homes to satisfy some theory, they are not the only victims. Indian children without biological parents to take care of them can be needlessly left in institutional care when there are not enough Indian foster parents or adoptive parents to take them into their homes.

In this Alice in Wonderland legal situation, we can hardly encourage non-Indian families to take care of these children, when that can so easily lead to heartbreak for both the children themselves and the surrogate parents who have become attached to them.

The New York Times reports that less than 2 percent of the children in Minnesota are Indian, but 15 percent of the children in that state’s foster-care system are Indian. In Montana, 9 percent of the children are Indian, but Indian children make up 37 percent of the children in foster care.

What a price to pay for a theory!

Thomas Sowell is a senior fellow at the Hoover Institution. © 2013 Creators Syndicate, Inc.

Thomas SowellThomas Sowell is an American economist, social theorist, political philosopher, and author, whose books include Basic Economics. He is currently senior fellow at the Hoover Institution, Stanford University.

Most Popular

Law & the Courts

The March for Life Is a March for Truth

Pro-lifers are marching today, as they do every year, to commemorate a great evil that was done in January 1973 and to express solidarity with its innocent victims. The Supreme Court’s decision in Roe v. Wade eliminated legal protections for unborn children in all 50 states, and did so without any ... Read More
Law & the Courts

The March for Life Is a March for Truth

Pro-lifers are marching today, as they do every year, to commemorate a great evil that was done in January 1973 and to express solidarity with its innocent victims. The Supreme Court’s decision in Roe v. Wade eliminated legal protections for unborn children in all 50 states, and did so without any ... Read More
Law & the Courts

Clarence Thomas Speaks

Those who know Justice Clarence Thomas say that any perception of him as dour or phlegmatic couldn't be more off-base. He's a charming, gracious, jovial man, full of bonhomie and easy with a laugh, or so I'm told by people who know him well. On summer breaks he likes to roam around the country in an RV and stay ... Read More
Law & the Courts

Clarence Thomas Speaks

Those who know Justice Clarence Thomas say that any perception of him as dour or phlegmatic couldn't be more off-base. He's a charming, gracious, jovial man, full of bonhomie and easy with a laugh, or so I'm told by people who know him well. On summer breaks he likes to roam around the country in an RV and stay ... Read More
White House

On the Bidens, Schiff Opened the Door

You opened the door. Trial lawyers live in fear of that phrase. When a trial starts, both sides know what the allegations are. Both have had enough discovery to know what the adversary will try to prove. Just as significantly, both know what their own vulnerabilities are. A litigator spends his pretrial ... Read More
White House

On the Bidens, Schiff Opened the Door

You opened the door. Trial lawyers live in fear of that phrase. When a trial starts, both sides know what the allegations are. Both have had enough discovery to know what the adversary will try to prove. Just as significantly, both know what their own vulnerabilities are. A litigator spends his pretrial ... Read More
U.S.

Nadler’s Folly

Jerry Nadler must have missed the day in law school where they teach you about persuasion. The House Democrat made a critical error early in the trial of President Trump. He didn’t just say that Republican senators, who voted to begin the proceedings without calling witnesses, were part of a cover-up. He said ... Read More
U.S.

Nadler’s Folly

Jerry Nadler must have missed the day in law school where they teach you about persuasion. The House Democrat made a critical error early in the trial of President Trump. He didn’t just say that Republican senators, who voted to begin the proceedings without calling witnesses, were part of a cover-up. He said ... Read More
Science & Tech

The Latest Pandemic Threat

I’m worried about the new coronavirus that has broken out in China and spread, albeit as of now in isolated cases, to other countries. Fortunately, the CDC has assessed that the risk of a major outbreak in the United States is low. I hope the risk is indeed low, because the stakes are very high, particularly ... Read More
Science & Tech

The Latest Pandemic Threat

I’m worried about the new coronavirus that has broken out in China and spread, albeit as of now in isolated cases, to other countries. Fortunately, the CDC has assessed that the risk of a major outbreak in the United States is low. I hope the risk is indeed low, because the stakes are very high, particularly ... Read More