by Timothy Sandefur

One-year-old Josiah Gishie was murdered in July. Phoenix police have charged his 32-year-old mother, Donielle King, for his death, and preliminary reports from the Arizona Department of Children’s Services (DCS) make for depressing reading: Over the past six years, DCS has repeatedly investigated King for abuse and neglect of Josiah and his siblings.

Why, then, were these children not rescued from this abusive situation? DCS tried repeatedly to make resources available to help King and her kids and visited the home repeatedly—but left the children in her custody, where Josiah met his death. According to DCS’s statement:

Ms. King has six prior DCS reports. Since Ms. King is affiliated with an Arizona Tribe, her cases fell under the Indian Child Welfare Act (ICWA). ICWA cases contain jurisdictional and legal issues that influence how the Department investigates and provides services to a family. There is a higher burden of proof for the government to intervene in an ICWA case. [emphasis added]

The “higher burden of proof” DCS refers to is found in Section 1912 of ICWA: “No foster care placement may be ordered…in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. No termination of parental rights may be ordered…in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” [emphasis added]

These rules supersede the rules that apply to non-Indian children. Those rules say that an abused child of another race can be taken into foster care based on the preponderance of the evidence, and the rights of an unfit parent can be terminated based on clear and convincing evidence. What difference does that make? In the 1982 case of Santosky v. Kramer, the U.S. Supreme Court explained that it’s important to draw these lines carefully because you don’t want to make it too easy to remove kids from their parents—which would violate the rights of parents (and kids)—but you also don’t want to make it too hard, because that would prevent the state from protecting kids from abuse. It expressly rejected the “beyond a reasonable doubt” rule because such a standard is too demanding: “The psychiatric evidence ordinarily adduced at commitment proceedings is rarely susceptible to proof beyond a reasonable doubt,” the Court noted. And “a reasonable-doubt standard would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.” But ICWA imposes this higher “beyond a reasonable doubt” standard, and also requires expert testimony. That’s a tougher standard that even applies in criminal cases.

ICWA also forces states to make “active efforts” to return kids to their birth parents after an accusation of abuse or neglect. That rule differs from the rule that applies to non-Indian kids. For them, the state must make “reasonable efforts” instead—and “reasonable efforts” is not required in cases of “aggravated circumstances” such as repeated abuse or molestation, because you don’t want to return kids to a dangerous home where they might be abused again. But ICWA’s “active efforts” requirement is more demanding: it requires more than “active” efforts (nobody’s ever said exactly what it requires) and there isn’t an exception for “aggravated circumstances.”

That means Indian kids—defined as children who are “eligible for membership” in an Indian tribe—must be sent back to abusive households time and time again, to be abused again for longer, than kids of other races. For white, black, Asian, or Hispanic kids, the state prioritizes the “best interests of the child” and tries harder to protect them from harm. But for Indian kids, federal law blocks states from taking steps to protect them from harm—and “best interests” takes a back seat. That’s not just me saying that: State courts have repeatedly said so. “Consideration of the best interest of the child,” said the Texas Court of Appeals in 1995, “is improper” because it “allows Anglo cultural biases into the analysis.” The California Court of Appeal agreed two years ago. For kids of other races, it said, “best interests” is the paramount consideration—but for Indian children, “best interests” is only “one of the constellation of factors” that courts should take “into account.”

All the facts of Josiah’s case remain to be seen, of course. But it looks like DCS social workers were trying to do their job. If it does turn out that they were forbidden to save the life of “the cutest monkey ever” by a federal law that deprives Indian children of the legal protections afforded to kids of other races, Josiah would only be the latest victim of this racially discriminatory law, a law that relegates our Native American fellow citizens to second-class status.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. He litigates ICWA cases as part of the Institute’s Equal Protection for Indian Children project.