by Timothy Sandefur

One thing that makes an honest conversation about the Indian Child Welfare Act (ICWA) so hard is the way defenders of the status quo insist on repeating soundbites and generalities—and avoid talking about what actually goes on in ICWA cases or how that law works in practice. A good example appeared last week in a Washington Post op-ed by artist Tracy Rector, who adds the latest—and silliest—conspiracy theory: The real motive behind efforts to obtain equal protection for Indian children, you see, is to get oil for the Koch Brothers. Seriously!

Such absurd accusations hardly deserve refutation. (For one thing, ICWA differs from other Indian laws in that it applies not to tribal members, but to children who could become tribal members. That’s what the Texas federal district court found unconstitutional in the Brackeen case, and it’s not found in, say, the Indian Gaming Regulatory Act or other Indian laws—so neither Brackeen nor any other ICWA case could “shutter casinos” or “privatize reservations” or any such bogeyman.)

But one favorite soundbite of those status quo defenders that ought to be addressed is the line that ICWA represents the “‘gold standard’ of child welfare practice.” This shibboleth first appeared in a friend of the court brief in a 2013 ICWA case, but it wasn’t actually referring to ICWA: What the brief said was that “support[ing] and develop[ing] the bonds between a child and her fit birth parents” is the “gold standard for child welfare practice that should be aspired to for all children.” Nobody disagrees with that, of course.

But ICWA doesn’t do just that. It goes much further—and makes it extremely difficult to protect Indian kids from unfit birth parents, too. ICWA’s “active efforts” provision and its “beyond a reasonable doubt” rule means that Indian children—who are defined as kids who are genetically eligible for tribal membership, even if they aren’t actually members—must be abused worse and for longer than children of other races before the government can rescue them from abusive households. The “reasonable doubt” rule forbids a “termination of parental rights” (typically necessary for an adoption to proceed) unless it’s proved beyond a reasonable doubt, based on the testimony of expert witnesses, that the child is in imminent danger of serious injury. That’s a higher evidentiary standard than applies in death penalty cases—and it’s a standard the U.S. Supreme Court rejected in a 1982 case when it noted that such a high standard “would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.”

This extreme legal burden not only makes it virtually impossible to find Indian kids adoptive homes, but also bars Indian parents from protecting their own kids. That’s not a gold standard—that’s a fool’s gold standard.

Consider the recent case of Josiah Gishie, whose mother murdered him in the Phoenix area this past summer—or Declan Stewart, beaten to death by his mother’s boyfriend in 2007—or Shayla H. and her sisters, who were sexually molested for years by their stepfather. In these and other cases, child welfare officials knew the kids were being harmed, but thanks to ICWA’s “active efforts” provision, they weren’t allowed to act until it was too late. The “active efforts” rule doesn’t apply to “all children,” and it isn’t about “fit birth parents”—it’s a rule that in case after case bars the state from protecting one specific set of kids from abuse and neglect: Indian kids. How is that a gold standard?

In cases the Goldwater Institute has worked on, like S.S. or J.P.C. or T.A.W., Native parents have tried to terminate the rights of abusive ex-spouses so that their new spouses can legally adopt their kids—and ICWA has stood in the way. In T.A.W., in which a Native mother sought to terminate the rights of her abusive, career-criminal ex, the court held that it didn’t matter that the ex wasn’t even Native American—ICWA still allowed him to bar the mother from protecting her child. In fact, in case after case, ICWA bars Indian parents from making choices to secure their own kids’ welfare. ICWA was meant to protect Indian families—but in practice, it often disrupts or prevents the formation of Indian families. That’s not a gold standard—it’s a crime.

Rector insists that the segregation ICWA imposes isn’t really about race because “being Native is not a racial designation—it’s a political, community and familial designation.” Fair enough, but that’s not how ICWA defines it. ICWA defines “Indian child” without consideration of any cultural or social or political factors whatsoever: It says an Indian child is a child who’s (1) eligible for tribal membership and (2) has a biological parent who’s a tribal member. That’s it. So children of other races who are adopted by tribal members don’t qualify even if they have strong political, community, and family connections to tribal communities. On the other hand, a child with no “community” or “political” connection to a tribe—who doesn’t speak a Native language or practice a Native religion, has never visited tribal lands and has no idea she’s Indian—would qualify as an “Indian child” under ICWA solely because of the blood in her veins. Yet a child like William Holland Thomas—who was the chief of the Cherokee tribe—would not qualify if he were alive today, based solely on his racial profile. Is that a gold standard? No—it’s a fake gold standard. It’s a pyrite standard.

Amazingly, ICWA goes even further by requiring that Indian children be placed in foster care or adoptive homes with “other Indian families” regardless of tribe, before they can be placed with white, black, Asian, or Hispanic adults. That means that, say, a Penobscot child must—as a matter of federal law—be placed with a Miwok family or a Shoshone family before he can be placed with a family of any other ethnic background. If, as Rector writes, the focus should be on “political, community and familial” connections rather than race, how do we explain these provisions in ICWA that treat all Indians as the same, fungible group? A true gold standard would respect the differences between tribes.

It’s certainly true that actual tribal membership isn’t about genetics. Kim Tallbear and other Native scholars and writers have rightly emphasized that it’s a matter of cultural identity, and our modern focus on genetics is wrong. But ICWA imposes that genetic standard. “One really f—d up aspect of Indian life,” writes Ojibwe author David Treuer, “is that, unlike any other minority, Indians have rules, based on genetics or ‘blood quantum,’ that determine whether or not someone is officially an Indian.” This “f—ed up” official federal standard isn’t a gold standard—but it is federal law, and it’s used as justification for depriving Indian children and the adults who love them of the legal protections they need, while disregarding the cultural and historical differences between tribes.

What about the burdens Indian children face when adopted by non-Native parents? There are reports out there that indicate that they face unusual challenges—although many such reports, such as the so-called “Split Feathers” report, were not scientifically rigorous, and other reports have showed the opposite results. One would naturally expect any child in foster care to face unusual challenges—otherwise she wouldn’t be in foster care—so it’s no surprise that many have suffered hardship. That factor throws off such surveys. But it’s likely true that Indian kids adopted into non-Indian homes have, as Rector puts it, been “ostracized and bullied in their new communities.” Still, the Supreme Court has already ruled that “the reality of private biases and the possible injury they might inflict” cannot justify the use of racial distinctions in child welfare law. In Palmore v. Sidoti (1984), it held that “[w]hatever problems racially mixed households may pose for children in 1984 can no more support a denial of constitutional rights than could the stresses that residential integration was thought to entail in 1917. The effects of racial prejudice, however real, cannot justify a racial classification.” Children of interracial marriages do face racial ostracism sometimes. But that can’t justify forbidding them or imposing racially discriminatory adoption rules.

All that glitters isn’t gold. That’s an old saying that’s meant to warn us to look beneath superficialities, like skin color, to what’s beneath. Sadly, ICWA doesn’t do that. What it cares about isn’t the individual needs of a particular child—it’s just what the color her skin is. The racial ostracism Rector mentions is a reality. But surely the cure for it isn’t more separation on the basis of race.

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.