by Timothy Sandefur
A.L.M. is a Texan child of mixed Navajo and Cherokee descent. He’s lived with his foster family for most of his life, and his birth parents want his foster parents to adopt him. As his birth father testified in a hearing, “I would love for him to stay with the foster parents…[they are] the only parents he knows.” But that wasn’t good enough for the Navajo and Cherokee tribal governments. They objected to the adoption and asked a state court to order A.L.M. taken away from his family and sent to live on a reservation in another state, instead, with race-matched strangers whom he had met once, for three hours.
I wish I could say this is an unusual case—but it’s not. In fact, thanks to the Indian Child Welfare Act (ICWA), it’s common. ICWA overrides state law when it comes to child protection, foster care, and adoption of children who are “eligible for membership” in an Indian tribe. And since eligibility depends exclusively on genetics—not on political or cultural or social factors—the result is that kids with Native American DNA in their blood are treated differently than their white, black, Asian, or Hispanic peers.
Not just differently—worse. ICWA makes it harder for states to protect Indian kids against abuse and neglect, because it mandates that they suffer more, for longer, before the state can rescue them. It imposes race-matching mandates that require the state to put them in foster care with “Indian” families (regardless of tribe) rather than with foster families of other races. And it makes it prohibitively difficult to find Native American kids the loving adoptive homes they need. Among other things, it gives tribal governments the power to intervene and block adoptions from proceeding, just like they tried did in A.L.M.’s case.
Most shockingly, ICWA overrides the “best interests of the child” rule that applies in most child welfare cases. Texas courts have literally ruled that there are two different “best interests” rules: one for white or black or Asian or Hispanic kids, that prioritizes the interests of that specific child—and a different, less protective, one for Indian children, under which an Indian child’s specific needs can be regarded as less important than the desires of a tribal government. More briefly, this is called “separate but equal.”
That’s a disgrace. Indian kids are citizens of the United States, entitled to the same protections that apply to all other kids. That’s why we’ve filed this brief in a federal lawsuit brought by A.L.M.’s foster parents, challenging ICWA’s unconstitutional racially-discriminatory rules. We’re joined in this effort by the attorneys general of Texas, Ohio, Louisiana, and Indiana—which is a welcome development. Attorneys general have a duty to protect the rights of the kids in their states—and ICWA unconstitutionally interferes with that duty.
Timothy Sandefur is Vice President for Litigation at the Goldwater Institute.