by Timothy Sandefur

The latest issue of the Hamline Law Review includes an article called “Close to Zero” by Abi Fain and Mary Kathryn Nagle, which so brazenly misrepresents our Indian Child Welfare Act litigation that it deserves a brief comment. Keep in mind that law reviews, including Hamline, are typically student-edited, and therefore not peer-reviewed; as Judge Richard Posner said some years ago, most of the time they’re like self-publishing. It’s at least true that Hamline’s editors seem to have made no effort to see whether Fain and Nagle’s claims were factual.

Fain and Nagle write that the goal of our federal ICWA case (which at the time was called A.D. v. Washburn but is now called Carter—case names change sometimes) is “to preclude individuals without a minimum amount of blood quantum from qualifying as ‘Indian’ under federal law.” This is a truly bizarre way of phrasing it. As we’ve explained not just in the briefs in that case, but in the dozen or so other ICWA cases we’re involved in, and our many publications on the subject, what’s objectionable about ICWA is that “Indian child” status is made to hinge entirely on blood quantum—which is to say, that all that counts in classifying a child as Indian is genetics. Not only is it simply false to say that Goldwater wants to “preclude” people from qualifying as Indian if they fall below a certain blood quantum, but if we were to prevail, then presumably more children would qualify as Indian, because they would not be barred by a lack of blood quantum—as they currently are. Our lawsuit seeks to remove the hurdle, not to raise it.

The authors go on to claim that the lawsuit was dismissed because Goldwater was “unable to locate or identify a single Indian child who had suffered the harms they claimed to be caused by ICWA.” But that is not what the court said. In dismissing the case, the court declared that the children named in the complaint lacked standing because the injuries they had suffered were either moot—meaning that they those injuries had been remedied—or that they had not yet occurred. A.D., for example, the little girl whose case we won in the Arizona Supreme Court last year—she was injured by ICWA; it’s just that we ended up winning her case in state court, so the federal court said that that didn’t count going forward. The court did not, and could not, claim that there was not even a single child who had suffered the harms caused by ICWA. In fact, not only are there many such children, whom we’ve identified in many of our publications—remember Laurynn Whiteshield? Declan Stewart? Lexi? C.J. Jr.?—but the court recognized as such. But the technical legal concept of “injury” is not the same as “nobody’s ever been harmed,” as these authors must know. Their flipping of these two different things, in order to make it look like ICWA’s just peachy, is an intentional effort to mislead readers.

I’ll just cite one more example. The authors write that “As Nations pre-dating the existence of the United States, tribal governments maintain an exclusive, sovereign authority to define requirements for their citizenship. Just as France has no authority to define the requirements for citizenship in the United States, the United States has no constitutional or inherent authority to impose tribal citizenship requirements based on a minimum amount of blood quantum.” It’s true, of course, that tribes have the exclusive authority to set their membership or citizenship criteria, and we’ve always said so. But “Indian child” status under ICWA is not a matter of tribal law—in fact, ICWA doesn’t apply to tribes at all. Rather, ICWA applies only to states, and “Indian child” status is exclusively a creature of federal and state law, which is triggered by a child’s genetics. And because ICWA’s a federal law, it has to abide by the Constitution. That means respecting the rights of American citizens—including Indian children. Indian children aren’t Frenchmen. They’re citizens of the United States, entitled to the same constitutional protections as their white, black, Asian, or Hispanic schoolmates.

Fain and Nagle are correct that “the United States has no constitutional or inherent authority to impose tribal citizenship requirements based on a minimum amount of blood quantum.” In fact, the U.S. has no constitutional authority to do anything to anybody at all based on blood quantum, because that violates one of the most essential principles of constitutionalism: equal protection before the law. As the Supreme Court has put it, “Distinctions between citizens solely because of their ancestry are, by their very, nature odious to a free people whose institutions are founded upon the doctrine of equality.” The problem with ICWA is that it subjects children to a separate legal framework—one that provides them with less protection against abuse or neglect; one that makes it virtually impossible for them to find safe, loving, permanent adoptive homes—and it does this based, not on their affiliation with a tribe, or their participation in its culture, or whether they know a tribal language, or any of those things. Instead, it depends solely on the DNA in their blood. That’s wrong, and it has to stop—for the kids’ sake, and for ours.

Timothy Sandefur is vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.