by Timothy Sandefur

Federal courts should wipe the Indian Child Welfare Act from our law books.

Neglected and abused Native American children may have new hope of finding the stable, loving homes they need, thanks to a lawsuit heard yesterday by a federal judge in Texas. That case, brought by several state attorneys general along with adoptive families and foster parents, challenges the constitutionality of a federal law that imposes race-based restrictions on the adoption of Indian children and makes it harder for states to protect them from harm.

The law in question is the Indian Child Welfare Act (ICWA), passed in 1978 to rectify the abuse of Indians by federal and state governments. Despite its good intentions, ICWA today stands as one of the biggest barriers against protecting kids with Native American ancestry. That’s because the law creates a separate, less protective set of rules for child-welfare cases involving “Indian children,” which it defines as children “eligible for membership” in a tribe and whose biological parents are tribal members. While each tribe’s membership criteria vary, they all depend exclusively on biological factors—meaning the only thing that counts is whether a child has the requisite biological ancestry. Religious, cultural, linguistic, or political factors don’t matter. Thus, a six-year-old California girl named Lexi, who never lived on reservation, didn’t speak a Native language or practice a Native religion, and whose most recent Native ancestor was a great-great-great-great-grandparent, was deemed “Indian,” while someone who is fully acculturated to a tribe but lacks the required DNA would not be.

This distinction matters because ICWA imposes a segregated legal system that ties the hands of state officials seeking to protect Indian children. If a neglect case involves a child of any other race, those officials must make “reasonable efforts” to keep the family together—which typically means providing social or rehabilitation services if the parents are in need. These “reasonable efforts” aren’t required in cases involving “aggravated circumstances” such as systematic abuse or molestation—because it would be wrong to send a child back to a dangerous home. But for Indian children, ICWA provides a different rule: It requires “active efforts” instead—which isn’t defined, but means greater action than “reasonable” efforts—and there’s no “aggravated circumstances” exception. As a result, Indian children must be repeatedly returned to abusive homes, to be hurt more and for a longer time, before they can be rescued.

Child-welfare officers often hate having to comply, particularly given that the Constitution forbids Congress from ordering states to enforce federal rules. In Printz v. United Statesthe Supreme Court ruled that although states can’t block federal officials from enforcing federal law, they can refuse to participate. In the Texas case, attorneys general in Texas, Indiana, Louisiana, and Ohio argue that ICWA violates this rule by compelling them to do as Congress commands in cases involving child-welfare law—which is a state, not a federal, matter. Congress can regulate what happens on reservations, but many of the most controversial ICWA cases involve kids in residential neighborhoods far from tribal lands.

ICWA imposes race-based mandates that allow only Indian families to foster or adopt Indian kids, except in rare circumstances — a terrible idea, given the extreme shortage of Native foster families. Tribes are also given special power to remove Indian children from foster homes, even after they’ve lived there for years and come to love their foster parents as their own. That’s what happened to Lexi, snatched from her foster family after living with them for four of her six years.

ICWA also makes it harder to terminate parental rights—which is typically necessary prior to adoption. Such cases are usually governed by the “clear and convincing evidence” test. But ICWA requires the “beyond a reasonable doubt” test instead, and states must also provide testimony from multiple expert witnesses. That’s more demanding than the rules that apply to death-penalty cases.

None of this is in the children’s best interests. But then, ICWA also overrides the “best interests of the child” standard that applies to cases involving all other kids. Courts in Texas and other states have even ruled that the “best interests” concept is “inherently Anglo,” and that for courts to prioritize children’s needs over the desires of tribal governments is a kind of racism.

Native American children are at greater risk than any demographic in the United States — for everything from drug abuse to suicide. There are adults willing to open their homes and hearts to these children. Yet federal law that says they’re the wrong race. That’s shameful. It’s long past time for courts to wipe such racial segregation off of our law books.

Timothy Sandefur is the vice president for litigation at the Goldwater Institute, which is participating in several cases challenging ICWA.

Cross-posted from National Review Online.