by Timothy Sandefur

This coming week, we’re in court defending the rights of Native American children who are subject to the racially discriminatory mandates of the Indian Child Welfare Act (ICWA). That’s the federal law that makes it harder for state officials to protect Native American kids who are neglected, abused, or in need of special protections.

Among other things, ICWA’s “active efforts” rule requires that state child protection workers take extraordinary steps to keep kids with their birth families whenever there’s a concern about the parents abusing or neglecting kids. The idea is that the government should avoid taking kids away from their parents—which is ideal, of course, except that there are times when it’s necessary, to protect kids against mistreatment. Where do you draw the line? State and federal law draws that line by requiring reasonable efforts—and not requiring such efforts at all if a child’s being systematically mistreated. You don’t want to send kids back into dangerous situations, after all. But ICWA imposes a stricter standard—“active” efforts rather than “reasonable”—and doesn’t excuse it in extreme cases. The bottom line is that Native American kids must be abused worse, and longer, before they can be rescued.

ICWA’s foster care and adoption rules are just as bad. Kids must be placed in foster care with “Indian families” or adopted by “Indian families” regardless of tribe, rather than by white, black, Asian, or Hispanic parents. And in termination-of-parental-rights cases (a necessary step prior to adoption), ICWA requires courts to find “beyond a reasonable doubt,” and with the testimony of expert witnesses, that an Indian child is going to face severe detriment, before the court can free a child for adoption. For kids of other races, the rule is the less stringent “clear and convincing evidence” standard, and no expert witness testimony is required. That rule was established by a Supreme Court decision that said “a reasonable doubt standard would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.” ICWA enforces that unreasonable barrier in cases involving Indian kids.

There are many other problems with ICWA—detailed in my policy report here—but as a constitutional matter, what’s most disturbing is that it applies to only one race of kids. And it is racial. Tribal governments argue that tribal affiliation isn’t a racial category, but a political category, citing the 1973 case of Morton v. Mancari. But ICWA doesn’t apply (like the law in Mancari did) to adult members of tribes. It applies to children who are “eligible for membership” in a tribe. And eligibility is determined entirely by biology: Only a child who has the correct DNA in his blood qualifies—and he’ll qualify even if he has no cultural, social, religious, linguistic, or political connection with a tribe. Even children adopted by tribal members, raised on a reservation, who speak a tribal language and practice a Native religion, do not qualify as “Indian children” under ICWA, because they lack the genetic requirement. On the other hand, a child who’s never even been to a reservation and has no cultural affiliation with a tribe—like Lexi, for instance—would qualify, based solely on her genes.

Tribal officials say ICWA is the “gold standard” for child protection. That’s a soundbite they borrowed from a brief in a Supreme Court case five years ago, and it’s a lie. Treating kids worse, denying them stability and love, and shuffling them around—sometimes to entirely different states—simply because of their race is no kind of gold standard. It’s racial segregation, is what it is. As the Supreme Court recognized in that case, ICWA “place[s] vulnerable Indian children at a unique disadvantage in finding a permanent and loving home, even in cases where neither an Indian parent nor the relevant tribe objects to the adoption.”

We filed a lawsuit challenging several provisions of ICWA, representing four Arizona kids subject to ICWA and their foster (now adoptive) parents. The trial court dismissed the case, ruling that these children and parents are not injured enough, and therefore they lacked legal standing to sue. Of course, their adoptions were only finalized after they had successfully jumped through the extra hoops that are required for adoption of Indian children. Our whole argument is that it’s unconstitutional and wrong to force one race of kids to jump through extra hoops before they can be adopted. Our clients have standing to sue because they’ve been harmed on the basis of race—forced into a literally “separate but equal” legal system. Actually, separate and substandard.

Being subjected to different, less protective rules on the basis of race is a constitutional harm that entitles a person to sue—so we’re asking the Ninth Circuit Court of Appeals to reverse the trial court and allow our case to proceed. Goldwater attorney Adi Dynar will be arguing the case on Wednesday at 9am PT in San Francisco. Video of the argument will be available the next day at this link. You can learn more about our Equal Protection for Indian Children project here.

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