By Timothy Sandefur
Floridians were shocked recently when two-day-old Ingrid Johnson was snatched from a Miami-area hospital by Miccosukee Tribal officers in what Senator Marco Rubio called a “kidnapping.” But outrageous as the action was, it was just one example of the consequences of a federal law that relegates Native American kids to a segregated legal system that makes it harder to protect them from abuse and neglect—a law called the Indian Child Welfare Act (ICWA).
As I write in the latest Weekly Standard, ICWA was written with good intentions: to stop wrongdoing by state governments that sometimes took Indian children away from their parents for inadequate reasons. But ICWA also includes provisions that override state child safety rules and give tribal governments powers that override the wishes of parents. It even circumvents the “best interests of the child” rule that governs cases involving children of other races. And although federal law forbids delaying or denying an adoption on the basis of a child’s race, there’s one exception: It is legal to discriminate against Indian children.
Even if a child doesn’t live on a reservation, follow tribal culture, speak a Native language or practice a Native religion, she qualifies as “Indian” based solely on genetics. And ICWA’s mandates are designed to prioritize the separation of the races over considerations of a child’s welfare.
For instance, one ongoing case involves a six-year-old boy who was born in Ohio and has lived there all his life. Yet a tribal court in Arizona commanded that he be taken from his family and sent to live with adults he’s never met on a reservation in Arizona where he’s never even visited, simply because he fits the racial profile. In another cases, a two-year-old Texas boy whose foster parents wanted to adopt him were barred from doing so by tribal officials who insisted that he be sent to live in New Mexico instead, to live on a reservation with a couple he’d only met for two hours.
Even more shocking was the case of Lexi, a 6-year-old California girl of Choctaw ancestry. In 2016, tribal officials took her from the foster family with whom she’d lived for four years and sent her to live with in Utah, instead. The family argued that this would traumatize her, but California judges brushed that aside by adopting a literal rule of separate-but-equal: In most cases, the overriding consideration is the child’s best interests, it said, but in cases involving Indian children, best interests are only “one of the constellation of factors.” Get that? There’s one “best interest” test for white, black, or Hispanic kids—and a different, weaker one for Indians.
ICWA overrides state laws protecting children from abuse, and requires state officials to return Indian kids to parents who have abused them. It forces states to place Indian children in foster care with “Indian” families—regardless of tribe—and forbids adoption of Indian children by adults of other races unless there’s proof “beyond a reasonable doubt”—based on expert testimony—that the child will suffer otherwise. That’s a stricter standard than applies to defendants in capital murder cases.
Defenders of ICWA argue that it’s okay to treat these kids differently because tribal governments are sovereign. But American Indian children are U.S. citizens, and Japan or Mexico could never seize an American child from her parents or send her to another state simply because her great-grandfather was born in Japan or Mexico. And Congress has no authority to strip American citizens of their right to a fair hearing, based solely on race.
Ingrid has now been returned to her parents. But the story isn’t over for children across the country who are genetically “eligible” for tribal membership and who—for that reason alone—are relegated to second-class status under ICWA. This case makes clear yet again that the time is long past for us to give all children, regardless of race, the equal protection of the law.
Timothy Sandefur is vice president for litigation at the Goldwater Institute, which is litigating several cases in state and federal court challenging the constitutionality of ICWA, including the Ohio case referred to above.