by Timothy Sandefur
April 4, 2018
Fifty years ago today Martin Luther King Jr. was murdered on the balcony of the Lorraine Motel in Memphis for having tried to improve the lot of his fellow man. He was 39.
The overriding theme of his work during his brief life was to expand the promise of equality in the Declaration of Independence into a meaningful reality for all Americans regardless of their race. And when he was challenged on the question of why people in say California or New York or Massachusetts should care about segregation in other states, his answer was quite plain:
“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial ‘outside agitator’ idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.”
These words often come to mind when working on cases involving the Indian Child Welfare Act. That’s the federal law that imposes a separate and less protective set of rules on child welfare cases involving children of Native American descent. This law makes it harder to protect Indian children against neglect or abuse, and virtually impossible to find them the loving adoptive homes they need. And the law is triggered exclusively by race: it categorizes children based on the DNA in their blood cells, not by any cultural, historical, linguistic, or religious connection with any tribe. And it then relegates them to a legal category where they are rendered more vulnerable to deprivation and mistreatment. ICWA doesn’t draw the line at the reservation boundary—it doesn’t apply on reservations. Instead, it draws the Color Line. It is literally race-based segregation that inflicts its worst harms on the most vulnerable Americans of all: Indian children.
Just yesterday I spoke at Arizona State University’s law school about the Act, and as often happens I was challenged: why do you care about Indians? And there as always, Dr. King’s words came to my mind.
Native American children like all Indians are citizens of the United States entitled to the full protections of the Constitution like anyone else. They are not foreigners, they are not aliens, they are not outsiders. They are our brothers and sisters and fellow citizens, they deserve to be treated as fellow citizens and equal before our laws. ICWA, for all its good intentions, deprives them of that right in case after case after case.
Toward the end of the discussion I was asked, “What is the endgame here? How long will the Goldwater Institute continue to work on ICWA?” The answer to that is easy: The endgame is equality. The endgame is a world in which, when a child is in need, what matters is that child’s needs not his race—where DNA is not considered the only relevant factor in protecting children from harm—where federal law does not mandate that abused children be returned to the parents who have abused them, does not deny them adoptive homes, does not demand that they be sent from one state to another at the behest of tribal officials, does not deny them love and care and companionship and shelter, simply because of their race. We may not get there together. But we will get there.
Timothy Sandefur is Vice President for Litigation and holds the Duncan Chair in Constitutional Government at the Goldwater Institute.