Law & the Courts

Attorneys General Should Stand Up for Native American Children

Texas attorney general Ken Paxton outside the Supreme Court in Washington, D.C., in 2016. (Kevin Lamarque/Reuters)
State officials are challenging a federal law that gives Native American children shockingly little protection in adoption proceedings

Texas attorney general Ken Paxton’s lawsuit on behalf of a couple seeking to adopt Andy, a two-year-old foster child whom they’ve raised almost from birth, may seem a bit unusual — it’s not the sort of thing in which an attorney general normally gets involved. But it’s a necessary and long-overdue step, thanks to a 40-year-old federal law that makes it virtually impossible to find adoptive homes for children of one particular race.

That law is the Indian Child Welfare Act (ICWA), and it creates a separate, less protective set of rules to govern cases involving children who fit the genetic profile of Native American. If Andy were white, black, or Hispanic, his adoption would be a routine matter. But because he’s Native American, ICWA applies — and that meant tribal-government officials were empowered to block the adoption. Shortly afterwards, Texas social workers announced that they would be shipping Andy to New Mexico instead, to live with a Native American couple whom he’s met only once — and who have not asked to adopt him.

Five-year-old Charlie faces a similar situation. He’s an Ohio boy who has lived with a foster family his whole life and thinks of them as his family. But since Charlie is Native American, an Arizona-based Indian tribe has invoked its powers under ICWA to order him removed from his home and sent 2,000 miles away to live on a reservation near Phoenix with strangers he has never met. The family appealed and — with support from Ohio’s attorney general — challenged the constitutionality of this racial discrimination at a hearing on Thursday.

It’s well past time that state attorneys general began paying attention to ICWA, which overrides state law in lawsuits involving child abuse, foster care, or adoption of Native American children (and does not apply on reservations, where tribes have exclusive authority). ICWA makes it harder to protect them from abuse, and next to impossible to find them permanent adoptive homes. Courts in Texas and other states have even said that ICWA overrides the “best interests of the child” rule that applies to cases involving other children.

ICWA doesn’t apply just to tribal members. Instead, it applies to children who are “eligible” for membership in a tribe, which is determined solely by ancestry. Even if a child has no cultural, social, or religious connection to a tribe, ICWA’s separate, less protective rules govern — including restrictions that require more proof of abuse before Indian children can be rescued from dangerous homes, as well as race-based restrictions on adoption. When termination of parental rights — the first step toward adoption — is requested, ICWA imposes a heightened version of the “reasonable doubt” test that criminal courts use, meaning that it’s literally easier to sentence a defendant to death than to find adoptive homes for Indian children. And it requires that Indian kids be adopted by “Indian families” — even of different tribes — rather than members of other races. That’s why Andy’s adoption was nixed: His foster parents, the court said, are the wrong race to love him.

The law also gives tribal courts extraordinary, race-based powers. Jurisdictional rules normally forbid judges from reaching across borders to decide cases involving people who have no connection to the place where the judges are located. But ICWA lets tribal courts decide cases based solely on the child’s ethnicity, even if the child has never visited tribal lands.

State attorneys general should say no to a law that snatches children from their families, extradites them to other states, and overrides their best interests.

That’s what happened in Charlie’s case. He’s never been to Arizona, but he has the 25 percent “Indian blood” required to join the tribe, so a tribal judge ordered Ohio courts to turn the case over to them — and to send Charlie himself to a family the tribe picked — all based on Charlie’s DNA.

Texas’s and Ohio’s attorneys general should be applauded for speaking up, and others should do the same. Child-welfare law is a matter for states, not Congress — and state attorneys general have a duty to defend their states’ kids. They should say no to a law that snatches children from their families, extradites them to other states, and overrides their best interests.

Indian children are American citizens, entitled to the same legal protections that children of other races enjoy. Yet they face extraordinary risks. They’re more likely to suffer neglect, abuse, addiction, and suicide than any others. Violence accounts for 75 percent of deaths among Indian youths, and suicide is the largest killer of Indian boys ages 10 to 14. These kids need help — and there are families willing to help them. The only thing that stands in the way is racist federal policy.


Indian Child Welfare Act — Overturn It Now

The Disgrace of Indian Country

The Injustice of the Indian Child Welfare Act

— Timothy Sandefur is the vice president for litigation at the Goldwater Institute, which is participating in several cases challenging ICWA, including the Texas and Ohio cases. The names of the minors have been changed.

Timothy Sandefur is the Goldwater Institute’s vice president for litigation. He authored a friend-of-the-court brief in Brackeen v. Bernhardt.


The Latest