November 7, 2018
The Constitution guarantees equal protection to all Americans. But state and federal law denies equal protection for children of Native American ancestry. In a new video, the American Enterprise Institute’s Naomi Schaefer Riley explains how the Indian Child Welfare Act of 1978 (ICWA) has adversely impacted Native American children by putting the interests of tribes ahead of kids.
Under ICWA, these vulnerable kids are subjected to a separate, less-protective set of laws solely because of their race—laws that make it harder to protect them from abuse and neglect and virtually impossible to find them loving, permanent adoptive homes. The Goldwater Institute is fighting in courts nationwide to ensure that Indian children have the same constitutional protections afforded their peers of other races.
ICWA is a complicated law with many constitutional problems. Among other things, it:
- Does not apply just to children who are tribal members, but to children who are “eligible” for membership—based solely on their genetics
- Overrides the “best interests of the child” standard that applies in lawsuits involving kids of other races
- Imposes race-matching requirements in foster care and adoption cases, so that Indian children must be adopted by “other Indians”—regardless of tribe—rather than by families that are willing to give them homes
- Gives tribal governments power to veto the wishes of parents
- Bars state agencies from removing kids from abusive homes
- Forces state child welfare agencies to send kids to other states, or to reservations, where the children have ever lived
- Imposes different rules of evidence on lawsuits that involve “Indian children”
- Allows courts to do what federal law normally prohibits: to deny or delay adoption cases based on the child’s race
Read more about ICWA and how the Goldwater Institute’s Equal Protection for Indian Children project is devoted to ensuring that the individual rights of vulnerable kids take precedence over racial considerations.