by Timothy Sandefur
September 17, 2018
If you’re in the DC area, I’ll be speaking Thursday at the Cato Institute on a panel examining the Indian Child Welfare Act (ICWA) on its 40th anniversary. I’ll be joining Matthew McGill of Gibson, Dunn, & Crutcher—who’s helping lead the litigation in Brackeen v. Zinke—and Charles Rothfeld of Mayer Brown, who represented the birth father in the 2003 Supreme Court case of Adoptive Couple v. Baby Girl. The panel will be moderated by Cato’s Walter Olson.
Although passed with good intentions—to end abusive practices by the government which often took Native American kids away from their parents for insufficient reasons, or with little understanding of tribal traditions and culture—ICWA is today often the cause of harm to Indian children and to their parents. It makes it harder for child welfare agencies to protect abused or neglected kids—its “active efforts” rule essentially requires these agencies to return abused kids to the families that have mistreated them—and makes it extraordinarily difficult to find them the permanent, loving adoptive homes they need, thanks to race-based mandates that essentially prohibit the adoption of Indian children by adults who aren’t Native American. The law even blocks Native American parents themselves from taking steps to protect their own children—as in the T.A.W. case, the S.S. case, the J.P.C. case, and others in which we’ve represented Native American parents seeking to make a better life for their children. Because ICWA prioritizes race over the best interests of children, it inflicts long-lasting harms on some of the most vulnerable Americans.
Click here to register for this Thursday’s event. You can learn more about ICWA’s constitutional problems in my paper Escaping the ICWA Penalty Box or at our Equal Protection for Indian Children Project page.
Timothy Sandefur is the vice president for litigation at the Goldwater Institute.