Law & the Courts

Federal Law Has Failed Vulnerable Native American Kids

Beatrice Lookinghorse sits with two of her grandchildren in the backyard of her home on the Cheyenne River Reservation in Green Grass, S.D., May 28, 2018. (Stephanie Keith/Reuters)
As the Fifth Circuit hears a challenge to the Indian Child Welfare Act (ICWA), it’s worth considering the damage the ICWA has done.

American Indian children are the most at-risk kids in the country, more likely to suffer from abuse, neglect, alcoholism, drug addiction, and suicide than any of their peers. There are families out there willing to help them, but federal law says no — because their skin is the wrong color.

I’m not exaggerating. Thanks to the Indian Child Welfare Act (ICWA), children eligible for tribal membership are subjected to different rules if they’re abused, neglected, or in need of adoptive homes — rules that are less protective of their safety than those that apply to other kids. Fortunately, a federal appellate court heard a case this week, Brackeen v. Bernhardt, challenging these racially discriminatory standards.

The ICWA is the opposite of affirmative action: It reduces legal protections for vulnerable children based on race. Its “active efforts” rule, for example, makes it harder for state officials to rescue American Indian kids from unsafe homes than other children. Under federal and state law, social workers can remove non-Indian children from abusive parents as long as they first undertake “reasonable efforts” — like making rehabilitation or counseling services available — to help those parents. This “reasonable efforts” rule doesn’t apply to cases involving systematic abuse or molestation, because it would be wrong to send kids back to dangerous homes. But the ICWA imposes the more stringent “active efforts” standard, which requires state officials to go further before removing vulnerable Indian children from their homes, even in cases of systematic abuse or molestation. This means state social workers are forced to return abused Indian children to the families that are mistreating them — a requirement that does not apply to children of other races.

The ICWA also imposes race-based limits on the fostering and adoption of at-risk Indian children. If white, black, Asian, or Hispanic children need new homes, states can place them with any qualified and safe foster family, and that family can adopt them if the state decides it’s in their best interest. In fact, federal law forbids racial discrimination in adoption cases. But, again, the ICWA makes Indian children the exception. It requires that they be placed with “Indian” families — even families from completely different tribes, with whom they have nothing in common — instead of with families of other races.

The ICWA also lets tribal governments prohibit Native parents from making choices about their own children’s adoptions. That’s what happened to a Texas couple who arranged to have their son adopted by a non-Native couple, only to have Navajo and Cherokee officials intervene to block the adoption from happening. They’re now challenging the ICWA’s constitutionality in Brackeen, which the Fifth Circuit Court of Appeals heard today.

Shockingly, the ICWA is not limited to tribal members and it doesn’t apply on tribal land. Instead, it applies to children based exclusively on their biological ancestry. If a child qualifies for tribal membership — which depends solely on genetics — the ICWA deems them “Indian” and therefore subject to its rules, even though they may never join a tribe and may have no idea that a distant ancestor was Indian. The ICWA, in short, elevates race over any other consideration, and in so doing violates the due-process clause of the Fifth Amendment.

The consequences are often disastrous. In November, a Crow tribal court used its ICWA powers to take a Crow child away from his white foster family and give him to a Crow couple, despite plentiful evidence that the couple were unfit. It did so because, as the presiding judge put it, “I’ll be damned if I’ll be the first Crow judge to let a white couple adopt a Crow child.” Weeks later, the couple brutally murdered the child.

Tribal governments call the ICWA the “gold standard,” saying it prevents the breakup of Indian families by officials who sometimes abuse their powers. But while it was well intended, the law elevates racial politics over the needs of vulnerable children and makes it harder to protect them from harm. It’s no gold standard. It’s an injustice, and we can do better.

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

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