However well-intended the ICWA may have been when passed, it stands today as a major obstacle to protecting at-risk children from abuse.
However well-intended the ICWA may have been when passed, it stands today as a major obstacle to protecting at-risk children from abuse.
M uch more than constitutional law will be on the line next week when the Supreme Court hears arguments in Brackeen v. Haaland, a case involving the constitutionality of the Indian Child Welfare Act (ICWA). That’s because the ICWA — a federal law that creates a unique set of rules for child-welfare or adoption cases involving Native-American kids — actually makes it harder for states to protect these children from harm and virtually impossible to find them adoptive homes when needed.
Although it was passed with good intentions — to halt practices whereby states actively tried to take children away from Native parents as part of a program of coercive “assimilation” — the ICWA today unfortunately harms the very children it was supposed to help. Native children are at greater risk of everything from physical beating to gang membership to suicide than any other demographic in the United States. Yet the ICWA strips them of the legal protections that kids of all other races enjoy, and elevates racial and political considerations over their best interests.
The ICWA’s unconstitutionality starts with its definition of “Indian child.” Unlike all other Indian laws, which apply to residents of tribal lands or to tribal members, the ICWA applies outside of tribal lands, and to kids who are only “eligible” for tribal membership — even if they never become tribe members. Every tribe has different eligibility rules, but all are predicated exclusively on biological ancestry. That means that even children with no cultural, political, or social connection to a tribe — who speak no tribal language, don’t practice a Native religion, and have never visited a reservation — are deemed “Indian” under the ICWA, whereas children who are fully acculturated with a tribe are not, if they lack the biological pedigree necessary for tribal membership. Thus, in 2016, a six-year-old California girl named Lexi was deemed “Indian” and subjected to the ICWA, even though her only connection to the Choctaw tribe was that her great-great-great-great grandparent was Choctaw. On the other hand, someone like Linda Wishkob (the fictional white girl raised by an Ojibwe family in Louise Erdrich’s novel The Round House) or the real-life William Holland Thomas (a white man who became a Cherokee chief in the 19th century) would not qualify as Indian under the ICWA, solely because of the blood not in their veins.
That biological distinction is important because the rules the ICWA imposes on “Indian children” are less protective of their safety than are the rules that apply to other children. Consider, for example, the ICWA’s “active efforts” requirement. Under the laws of every state, when a child is taken into protective custody to shield her from abusive parents, state officials must make “reasonable efforts” to return her to her parents. That means making anger-management or alcohol-treatment programs available to the family. But these “reasonable efforts” are not required in cases involving “aggravated circumstances,” such as sexual molestation or drug addiction — because it would be foolhardy to send children back to homes that the state knows will only harm them again.
For “Indian children,” however, the rule is different. The ICWA’s “active efforts” provision requires more than reasonable efforts (although the act doesn’t define the term “active efforts”) and the law includes no “aggravated circumstances” exception to the provision. As a result, state child-welfare officers are legally required to return Indian children to homes they know are abusive — a rule that does not apply to white, black, Asian, or Hispanic children. Unsurprisingly, that has resulted in case after case after case of Indian children being murdered by parents who state officials know are dangerous.
Equally problematic is the ICWA’s rule governing the termination of parental rights. If a child of any other race is being beaten by a parent, the state can terminate that parent’s rights over the child — thus freeing her for adoption — by offering “clear and convincing” evidence that she’s being harmed. But the rule for Indian children is different: Parental rights cannot be terminated without evidence “beyond a reasonable doubt,” in addition to expert-witness testimony. That’s a higher standard than applies even in criminal cases (where expert testimony isn’t required), which means it’s literally easier to put someone on death row than to find an adoptive home for an abused Indian child.
That difference in treatment doesn’t just hurt Native kids; it also violates the right of Native parents to protect their own children. Consider the case of Garret H., an Arizona father who sought to terminate the rights of his ex-wife, who was a drug addict and had abandoned their kids. He sought to terminate her rights so he could better protect the kids — but because the kids were “Indian,” the ICWA applied. And because he had not proven “beyond a reasonable doubt” that they were in imminent danger, and hadn’t provided expert-witness testimony to that effect, the court rejected his request . . . despite the fact that the mother herself was non-Indian. Such cases are shockingly common.
The ICWA also imposes race-based restrictions on foster care or adoption for Indian children, requiring them to be placed in “Indian” homes — even if those homes are of a different tribe — rather than with families of different ethnicities. That means an Inuit child must be placed with a Seminole or Penobscot family — regardless of the cultural differences between these tribes — rather than with an Irish or Jewish or Chilean family. The reason is what the Supreme Court in a 1989 case called “a Federal policy that, where possible, an Indian child should remain in the Indian community.” But that’s a racial distinction.
Tribal governments argue that the ICWA isn’t race-based, because in Morton v. Mancari (1974) the Court said tribes are political entities, rather than racial groups, which means Congress can treat Indians differently from non-Indians without crossing the line into impermissible racial discrimination. But the ICWA’s “eligibility” rule is triggered by tribal DNA, not tribal membership. And the fact that it requires that Indian children “remain in the Indian community” — even if that means placing them with members of different tribes — proves that it’s not based on “political” tribal membership. It’s based instead on “Indianness,” which is a racial category — something the Court has elsewhere called “an immutable characteristic determined solely by the accident of birth.”
Tribal officials also claim the ICWA is necessary to prevent states from breaking up Indian families. But as the Brackeen case reveals, the act actually violates the rights of Indian families. That case began when a Navajo mother and a Cherokee father volunteered their child for adoption by a non-Native couple. They thought that was in their child’s best interests. Yet the ICWA allowed tribal officials to veto that decision — which they did. Navajo politicians demanded that the boy be sent to live with strangers in New Mexico, instead — solely because of his biological ancestry.
Not only does the ICWA trample on the rights of children and parents, it also trespasses on the power — and duty — of states to protect their own citizens. Indians are, after all, American citizens, not foreigners, and states owe them a duty to protect their best interests. But the ICWA, amazingly enough, actually overrides the “best interests of the child” standard and imposes an across-the-board rule that Indian children must be placed with Indian adults, even when that is not in their specific best interests. Texas courts have even declared the individualized “best interest” rule racist: The “Anglo–American ‘best interest of the child’ standard,” said that state’s court of appeals in 1995, focuses above all on the child’s individual needs, whereas “under the ICWA, what is best for an Indian child is to maintain ties with the Indian Tribe.” California courts were even more explicit. In Lexi’s case, they declared that although a child’s individual needs are the primary consideration in cases involving non-Indian kids, judges in cases involving Indian children should only consider their “best interests . . . as one of the constellation of factors.”
Of course, having two different tests for kids of different races is literally the definition of “separate but equal.”
Drawing color lines doesn’t help children. Nor does depriving states of the ability to protect them from abuse. However well intended the ICWA may have been when it passed, it stands today as a major obstacle to protecting at-risk children from abuse. The Court should strike it down and ensure that all kids, regardless of their heritage, have their individual needs prioritized over racial considerations.