By Timothy Sandefur

Our Equal Protection for Indian Children project is devoted to advancing the rights of Native American children in need—who are today subjected to separate and less-protective rules in cases involving their abuse or neglect, or foster care, or adoption. Under the Indian Child Welfare Act (ICWA), these kids aren’t treated like their peers of other races. For most kids, a court is governed by the “best interest of the child” rule—that’s the state’s highest priority. But ICWA separates out Indian children and compromises their best interests, creating literal race-based legal segregation. Our Equal Protection for Indian Children project aims to change that, and ensure that these kids get the same strong legal protections other kids get.

Unfortunately, High Country News yesterday published an intensely pro-ICWA article essentially making the case that our work is part of a conspiracy to attack Indian tribes. Along the way, it makes numerous factual errors and indulges in many of the misleading sound bites we’ve heard often from tribal government officials. That’s unfortunate, because it perpetuates misunderstandings about how ICWA operates, and the reasons why Americans of all races should be concerned about it. ICWA was a well-intended law, meant in the 1970s to fix a broken system. Unfortunately, it went too far in the other direction. Now, fixing the problems ICWA causes and protecting these children will require maturity and attention to detail—none of which appears in the article. Indeed, the author, Allison Herrera, mentions not a single one of Goldwater’s actual cases, despite my lengthy interview with her and follow-ups by email and telephone. Most unfortunate is the spin that Herrera employs, trying to make innocent things sound nefarious, and awful things sound good.

Here’s an example: “ICWA mandates that when a Native American child’s parent dies, exhaustive efforts must be made to reunite the child with the surviving parent or other relatives,” Herrera writes. (That’s actually not true. ICWA applies to child custody cases, which does not include the death of a parent, except maybe in some unusual circumstances.) But she continues: “Children are placed with non-Native families only when an Indigenous foster home, preferably one within the child’s tribe, cannot be found.”

That’s true—but how are these terms defined in ICWA? Purely by genetics. Under ICWA, a child is an “Indian child” as a function of race alone—not tribal or cultural connections. The law defines that term as a child who’s “either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member.” And since eligibility for tribal membership is always a function of race—each tribe is different, but they all require only some biological criteria, not cultural or linguistic or religious criteria—the result is that ICWA applies based solely on race. A white or black or Hispanic child who is adopted by a tribal member is not an “Indian child,” even if she’s fully acculturated, because she doesn’t fit the racial profile. And a child like 6-year-old Lexi, who had no cultural or religious or linguistic connection to a tribe whatsoever, is subject to ICWA—based solely on her DNA. All that matters is that she was racially “Indian.”

Herrera continues: “[Goldwater] claims that the law is ‘race-based,’ and therefore unconstitutional…. ICWA has survived numerous such challenges over the years….”

That’s not really true. Courts have rarely addressed this question, and the Supreme Court never has. It’s only taken two ICWA cases ever, and in the more recent one, it came close to addressing that question—and there, it acknowledged the many troubling race-based aspects of the law, writing that they “raise equal protection concerns.”

Herrera goes on to quote Dave Simmons of “the National Indian Child Welfare Agency” [sic—actually, Association] as saying “they’re [Goldwater] trying to generalize and say, ‘You can’t trust any tribe anywhere to take care of their children.’” This is just false. The Institute has never said that and does not believe it, as I made clear to Ms. Herrera in my lengthy conversations with her. The Institute does not challenge tribal authority to run child welfare programs on reservations—and ICWA doesn’t apply on reservations. It only applies in off-reservation neighborhoods like yours and mine.

But what is meant here by “their” children? Children are people, not property. And when a child is in need, it’s immoral to subordinate that child’s needs to the proprietary claims of any government, tribal or otherwise. For a tribe to claim authority to dictate who may adopt, say, Lexi, who’s never lived on a reservation in her life and never had any relationship with a tribe, on the grounds that her DNA alone makes her “their child”—well, that’s the sort of racial categorization that the Supreme Court has rightly called “odious.”

“The Goldwater Institute,” writes Herrera, is “named after former U.S. Sen. Barry Goldwater, R-Ariz.—who actually voted in favor of the Indian Child Welfare Act.” This is a common sound bite of defenders of the status quo, but it’s never made much sense to me. In a legislative career that lasted some three decades, Barry Goldwater voted for a lot of things, some of which we would support today and some, not. And while ICWA’s race-based limits on adoption and child protection…maybe? could have made sense in the ‘70s?…they certainly can’t be justified today.

Herrera complains that in the Baby Veronica case, “[m]edia reports noted the amount of Indian blood that the child had, a distinction that is rarely publicly discussed when it comes to children of other races in the foster care system.” Well, that’s probably because children of other races are not shunted off into a segregated system governed by different rules—rules that actually veto their best interests in many cases. (Also, Baby Veronica wasn’t in foster care. That was an adoption case.) The amount of Indian blood matters because it subjects a child to an entirely different legal system than would apply if the child were of any other race. It’s against federal law to discriminate in an adoption case based on race—except if the child is genetically Indian.

Race matters in Indian kids’ cases. It shouldn’t, but it does. In fact, it’s all that really matters.

“Legal experts contacted for this article liken ICWA laws to international adoptions, which must proceed as a government-to-government affair,” Herrera writes. “The U.S. should deal with tribes as the sovereign nations they are, just as the government does with other nations.” But as I explained to her in our lengthy interview, this theory still does not justify ICWA’s race-based rules, for two reasons. First, ICWA doesn’t apply to children who are tribal members. It applies to children who are biologically eligible for membership—meaning, it’s based on ethnicity, not on nationality. Second, even when Congress acts in a government-to-government way, it’s not allowed to override the constitutional rights of U.S. citizens—and all Indian children are U.S. citizens. In Reid v. Covert, the Supreme Court ruled that even when Congress makes a treaty with a foreign government, it still cannot force American citizens into a separate legal system that lacks full due process protections. But that is just what ICWA does—both to “Indian children” and to the non-Indian adults who love them.

“Sovereignty gives the Gila River people the power to guide their own destiny,” she writes, “to interact with the federal government on a nation-to-nation basis, and to have their own courts and laws based on their own cultural values, which include taking care of the children. Tribal members rely on ICWA to help them do that.” Okay—but, again as I explained in great detail in our interview, our lawsuits do not and never have challenged the authority of tribes to decide child welfare cases on reservation. As to off-reservation, well, no sovereign has authority to reach beyond its boundaries in that way. California has no power to decide an adoption case in Maine or Texas just because the children’s grandparents were Californians. The Japanese government has no authority to dictate where a foster child is placed just because his great-great-great-great grandparent was Japanese. But that’s what the Choctaw tribe did in Lexi’s case.

And there’s an important difference between international adoptions and ICWA: unlike foreign nationals, Native American kids are all citizens of the United States, and of the state where they reside. So in a case like the A.L.M. case in Texas, when a state government orders a child taken away from his foster family—against the wishes of his Indian birth parents—and sent to live in another state with race-matched strangers, it’s not quite the same as an international adoption case. It involves a third sovereign—the state—that is also obligated to protect children—children who live not on reservations, but in ordinary neighborhoods next door to you and me and are indistinguishable from their schoolmates in every way but racial. A.L.M. is therefore different than an international law case. It’s just a straight-up case of unconstitutional racial discrimination.

It’s unfortunate that Ms. Herrera chose not to include this or any other cases in her article, despite my repeated explanations of them. Instead, she discusses tribal governments’ needs for resources to protect children on tribal lands—which has nothing to do with ICWA.

“In 2014, Gila River was forwarded an email from Goldwater, soliciting adoption cases involving non-Indian couples wanting to adopt Indian children,” Herrera writes. “It offered its services—which normally run as high as $500 per hour—free of charge.”

If this is meant to sound corrupt or improper, it fails. Let me make it clear: the Institute stands ready to represent birth parents, foster parents, would-be adoptive parents, and children themselves, in cases involving the constitutional problems with ICWA—whatever tribe, at any time, at any place in the country, if we are able. If you have such a case, please contact us right away. We offer our assistance at no charge. Unfortunately, we have to turn away many cases. Our ICWA practice currently consists of only two attorneys, and our budget is far smaller than that of any tribal government. We would, of course, happily accept donations from anyone interested in supporting our work defending these kids. But the notion that the Institute is being secretly funded in an attempt to “profit from every adoption it can push through successfully” is childish conspiracy-theory nonsense.

Sadly, Herrera’s article makes no mention of any of the cases Goldwater is actually litigating. More than one of those cases, the Gila River tribe should be quite familiar with.

In the case of C.J. Jr., for example, an Ohio child, born in Ohio to parents residing in Ohio and now living with Ohio foster parents—as he has for most of his life—is the subject of a lawsuit in which tribal officials are trying to force Ohio officials to extradite him to Arizona, where he’s never been, to live on a reservation with race-matched strangers he’s never met. Tribal officials have made no effort to show that this would be in C.J. Jr.’s best interests—because it’s not. Instead, they insist that, solely because of his racial origin, they know best what to do with “their” child.

Now tell me—how does that remedy the injustices of the past? The answer: it doesn’t. It just inflicts a new injury on an innocent kid.

Nor does the article mention the many cases in which we’ve represented tribal members themselves, who have been barred by ICWA in their efforts to protect their kids. That would include the father of S.S. and S.S., who’s a tribal member, but wasn’t allowed to take steps to protect his kids against his neglectful, drug-dependent ex—because ICWA forbids it. It would include the mother of J.P.C., also a tribal member, who was again forbidden to protect her child against her criminal ex, and to have her new husband adopt her son—solely because her child is an Indian. And it would include the parents of a Minnesota child who sought to have their son adopted by a non-Indian couple, but weren’t allowed to do so. White or black or Hispanic parents would be—but this little boy’s parents were the “wrong” race.

ICWA’s separate and less-protective rules are triggered by race—not by tribal membership, not by cultural connection to a tribe (there’s often none) and not by parental wishes. ICWA often contradicts parents’ wishes. And it doesn’t require that Indian kids be placed with members of their tribe. It requires that they be placed with “other Indian families” regardless of tribe. It’s about race, not tribal status.

Misleading and incomplete reporting does a disservice both to advocates and opponents of ICWA’s racial separatism. It hurts us opponents, of course, by falsely portraying us as engaged in some Koch Brothers-funded conspiracy to “put a bounty on children” and similar conspiracy-theory stuff. But it also harms supporters of ICWA by making them feel comfortable about their arguments when in reality they’ve ignored both our actual criticisms and the real facts of ICWA cases. In other words, it flatters the prejudices of a one group of readers, but it doesn’t instruct them or challenge them to think about the issues thoroughly. That’s unfortunate.

And, as usual, the real victims are ultimately the kids, who depend on us adults to create a better world for them by laying aside our prejudices, maturely addressing the actual merits of each others’ positions, and trying to figure out how to improve things. Sitting Bull is said to have remarked once, “Let us put our minds together and see what life we can make for our children.” But we can’t put our minds together if we’re misled by journalism that ignores or obscures facts and just repeats baseless assertions in order to make readers feel more snug in their predetermined conclusions.

Timothy Sandefur is Vice President for Litigation and holds the Duncan Chair in Constitutional Government at the Goldwater Institute.