by Timothy Sandefur

It’s become regrettably common for partisans of various types to use the term “fact checking” to claim objectivity that in fact they lack. That’s certainly true of the latest item from High Country News, which purports to “fact check” my remarks at the Cato Institute’s panel on the Indian Child Welfare Act (ICWA). Although the item claims to “check the facts,” it actually perpetuates falsehoods or irrelevancies, in an effort to obscure the constitutional flaws with ICWA. (And it’s not the first time we’ve seen these sort of misrepresentations from the piece’s author.)

Tedious as it may seem, it’s important to set the record straight.

1. HCN claims it’s “deliberately misleading” to say that ICWA deals with Indians as a racial category rather than a political one. “ICWA refers to ‘Indians,’” the article says, “who are citizens of sovereign Nations.” But in reality, ICWA does not apply to a child based on his or her citizenship in a sovereign Indian nation. It applies to children who are eligible for tribal membership, even if they are not tribal members and even though they may never become tribal members. That’s in 25 U.S.C. § 1903(4)—you can read it here. And eligibility for tribal citizenship, while different from tribe to tribe, in all cases depends exclusively on biological factors. Political, cultural, social, religious, affiliation or residency—none of those matter. A child who has 25% Navajo blood is eligible for Navajo membership even if he has absolutely no cultural or political connection to the tribe. A child who has 25% “Indian” blood (of any tribe) is eligible for membership in Gila River even if he has never even visited Arizona and has no idea he’s “Indian.” On the other hand, a child who lacks the biological qualifiers but is adopted by a tribal member, raised on reservation, speaks a tribal language, practices a Native religion, and considers himself fully a member of the tribe would not qualify because he’s not the biological child of a tribal member. A child qualifies as an “Indian child”—and is subject to ICWA’s separate legal rules—based exclusively on the child’s biological ancestry. It is therefore a racial, not a political, categorization.

2. “ICWA’s rules set an exemplary standard that precludes non-Indian entities from breaking up Indian families based solely on prejudice and cultural misunderstandings.” In reality, ICWA establishes a set of “placement preferences” under which children must be placed in foster or adoptive homes with adults who are “Indian” (regardless of tribe) rather than of another biological ancestry. It also imposes higher evidentiary standards—such as the “beyond a reasonable doubt” rule—in cases seeking termination of parental rights (which is necessary in cases where birth parents are abusive or neglectful). The rule for children of other races is the “clear and convincing” standard. That’s the rule the Supreme Court chose in Santosky v. Kramer, which held that the “beyond a reasonable doubt” standard would harm children by making it too difficult to protect them from neglectful or abusive parents. Yet ICWA does impose that standard—exclusively on children who are biologically eligible for tribal membership. No doubt ICWA had good intentions—but in reality, it imposes a separate set of legal rules on Indian kids—rules that place unique and severe barriers in the way of protecting them.

3. “Contrary to Sandefur’s dispersions [sic; I think she means “aspersions”] here, what constitutes ‘active efforts’ under ICWA is no mystery. The law clearly defines ‘active efforts…’” No. It does not. (Here’s what the Alaska Supreme Court has said: “ICWA does not define ‘active efforts.’” A.A. v. State, 982 P.2d 256, 261 (Alaska 1999)). If we’re wrong, show us the definition. In fact, state courts have been forced to interpret this term on their own, and they’ve said it requires something more than the “reasonable efforts” rule that applies to non-Indian children. What that means is that it’s harder to terminate parental rights in the cases of Indian children who are abused or neglected than in cases involving kids of other races.

Thus, even when Indian parents themselves want to terminate the rights of abusive or neglectful spouses—so that their new spouses can adopt their kids as their own—courts don’t let that happen. (More on that here.) And even where a parent is abusing or neglecting a child, child welfare agencies are forced to return the child to the bad situation time and again, sometimes resulting in terrible harm to the child. That wouldn’t happen to children of other races.

4. “[In In re. T.A.W.] the Washington Supreme Court did not instruct the trial court to reach a specific determination with regards [sic] to whether the non-Indian parent’s rights could or should be terminated, and certainly the court did not, as Sandefur misleadingly suggests, conclude that the father could use ICWA ‘to block the efforts of the birth mother to terminate parent rights [sic] of the birth father.’” This isn’t fact-checking, but tedious quibbling. True, the court remanded the T.A.W. case, saying that the Indian mother who wanted to terminate the rights of the non-Indian father had failed to make “active efforts” to facilitate his relationship with the child. In other words, the Indian mother was prohibited from taking a step that, if she were non-Indian, she’d have been allowed to take—and all in order to ensure the child’s continued relationship with a non-Indian man. The dissenting opinion rightly called this absurd. “Indian child T.A.W. is in an Indian home with his Indian natural mother and with an Indian stepfather with whom T.A.W. has bonded,” it said. But thanks to ICWA’s separate and substandard rules, the mother’s efforts to protect her child were blocked. It’s true that the Court remanded to the trial court with instructions to proceed under these unequal and unjust rules—which had the practical effect of blocking the mother’s efforts to terminate the parental rights of the birth father.

5. “[The J.P.C. case] confirms that when parties and lower courts attempt to circumvent ICWA’s clearly defined procedures, courts applying the act will instruct those entities to go back and follow protocol.” This is a truly remarkable statement. Where in the world was there any effort to “circumvent” ICWA in the J.P.C. case? That case, like the T.A.W. case, involved an Indian mother living off-reservation who sought to terminate parental rights of an abusive, non-Indian ex, and was not allowed to do so thanks to ICWA’s “active efforts” requirement. That requirement is not part of her tribe’s law, so if she had lived on reservation, she would have been allowed to terminate the ex’s rights. And it’s not part of Arizona law, either, so if her child weren’t biologically eligible for tribal membership, she again would have been allowed to do so. But because she lived off-reservation, ICWA applied, with its less-protective “active efforts” requirement—thereby blocking the Indian mother’s ability to protect her own child as she saw fit.

There was no circumvention here—and there was no “entity” involved, and nobody was seeking to “terminate parental rights based on prejudice or cultural misunderstandings alone.” There was simply an Indian mom wanting to do what’s best for her child—and not being allowed to, thanks to an absurd and unjust application of a separate, less-protective legal standard that applies solely to Indian children. The cold bureaucracy-lingo in which this “fact checker” speaks of this case is truly remarkable when you consider its practical effect: a Native mom wanting to protect her child from a non-Indian criminal, and not being allowed to, thanks to federal law.

6. Saying that ICWA applies based on Indianness generically rather than tribal affiliation “is a gross mischaracterization,” claims HCN. “It’s hard to understand what Goldwater means by ‘Indianness generally’—but ICWA does not apply to humans who have ‘Indianness generally.’ ICWA only applies to citizens of federally recognized tribes.” This is just not true. ICWA does not apply just to citizens of federally recognized tribes. It applies to children who are “eligible” for membership and have a biological parent who is a member. That means a child who is not a tribal member and who may never become one, is an “Indian child” under ICWA. And ICWA does not depend on a particular tribe. Its foster placement and adoptive placement provisions require that children be placed with “Indian” families regardless of tribe, rather than with adults of other races. It doesn’t say that (e.g.) Navajo children should be placed with Navajo adults—it says that a Navajo child must be placed with a Cherokee family rather than with adults of other races, regardless of the fact that Navajo and Cherokee have wholly different languages, traditions, and histories, and that their traditional homelands are as far apart as Paris and Moscow.

Thus ICWA embodies the racist construct of the “generic Indian”—as though all tribes are fungible. It classifies children as Indian based on their genetics, not their cultural or social or political affiliation (children of other races who are adopted by tribal members and consider themselves Indian do not qualify, even if they’ve lived on reservation their entire lives) and it requires that they be placed with adults based on their “Indianness” rather than tribal affiliation. True, not every child of Native American ancestry will qualify as “Indian” under ICWA—but as the Supreme Court has said, “simply because a class defined by ancestry does not include all members of the race does not suffice to make the classification race neutral.”

7. “Citizenship in a tribal nation is a consensual relationship between a nation and a citizen. A citizen may terminate his or citizenship at any time.” Except, as noted above, that ICWA applies to children who are only eligible for citizenship. And it’s not true that a parent can block ICWA from applying to a child by quitting the tribe. In one Oklahoma case, for instance, a Cherokee father tried to do that, but the court held that ICWA still applied. Or take the Minnesota state version of ICWA (called MIFPA): it applies to children who are eligible for membership regardless of a parent’s citizenship status. That means a parent can’t even prevent MIFPA from applying by quitting the tribe. Anyway, how cruel is it to force an Indian parent to leave the tribe if she wants to make her own decisions about her own children’s welfare, such as whether to terminate the rights of an abusive ex, or whether to place her child with the adoptive family she’s chosen? A parent’s right to make such decisions is a “fundamental right” under the Constitution—but ICWA violates that right, and allows tribal governments to override the choices parents make.

8. “Nowhere in [the Alexandria P.] decision does the court mention the words ‘separate but equal,’ nor does the court apply any standard equivalent to the standard the U.S. Supreme Court articulated in Plessy v. Ferguson.Well, of course the court didn’t use the phrase “separate but equal.” But it certainly does apply a separate but equal—or rather, separate and substandard—rule. The decision said that there’s one “best interests of the child” standard that applies to white kids, and a different “best interests of the child” standard that applies to Indian kids. And while for white children, the best interest of an individual child in his or her unique circumstances is considered the paramount, overriding consideration, the rule is different for Indian kids. For them—these are the court’s words—“a court should take an Indian child’s best interests into account as one of the constellation of factors.” In other words, for kids of other races, best-interest is the overriding concern—but for Indian kids, it’s just one of the “constellation of factors.”

The court tried to claim that this “does not change the cardinal rule that the best interests of the child are paramount,” but admitted that “it may alter its focus.” Indeed it does! It “alters its focus” by saying that other factors are equally, or more, important than child’s specific needs and circumstances. That rule does not apply to children of other races. It is therefore a literal rule of “separate but equal”—meaning that it’s a rule that, despite the court’s euphemistic language, in practice relegates “Indian children” to a separate legal category subject to different and less-protective legal rules.

9. HCN disputes that ICWA extends personal jurisdiction to tribal courts based on the blood in a child’s veins. But the article doesn’t explain what personal jurisdiction means or why this statement is (allegedly) false. In fact, in cases like C.J. Jr. and Renteria v. Cuellar, tribal courts have asserted authority to decide cases involving children who are not, and have never been, residents of tribal land. They’ve asserted this power based on the children being “Indian children,” and they’re Indian children because they are biologically “eligible” for tribal membership—that is, eligible based exclusively on their DNA. Personal jurisdiction is a complicated and boring topic, so I’ll spare you, but it essentially means courts can’t decide cases involving people who have no connection to that court. What connection do these children have to these tribal courts? Their “Indian child” status, which, again, is based exclusively on biological ancestry—the blood in your veins. HCN says “ICWA’s application depends not on the blood in your veins, but rather, hinges entirely on your citizenship in a tribal nation,” but that is absolutely untrue. ICWA’s definition of “Indian child” could not be clearer: you’re an Indian child if you’re eligible for tribal membership, even if you are not, and never become, an actual citizen in that tribe.

10. “Inherent in Sandefur’s rhetoric is the suggestion that tribal courts are bad places to litigate the rights of children, parents and families—a tactic that blatantly distorts facts and perpetuates a narrative of white superiority in matters of justice.” Well, I don’t know what’s “inherent” in my “rhetoric” and what’s just being falsely attributed to me, but here’s the reality: tribal courts are not governed by the due process clause or the Fourteenth Amendment. And thanks to (incorrect) rulings by federal courts, the ability to appeal from a tribal court is sharply limited: despite the clear language of the Indian Civil Rights Act, people whose rights are violated by tribal governments have practically no chance to go to federal court. I’ve never said (inherently or otherwise) that tribal courts are “bad places”—but it is unconstitutional to force American citizens to go into a separate legal system that lacks the due process protections of state or federal courts. That’s what the Supreme Court said in Reid v. Covert, which involved forcing Americans into military courts. Military courts may not be “bad places”—the Court went out of its way to say they aren’t—but it’s still unconstitutional to force civilians into them rather than into the state or federal court system. The same is true of ICWA’s jurisdictional rules, that force children and the adults who love them into tribal courts that lack the appellate rights available elsewhere.

11. “If the congressional classification of ‘Indian’ were deemed unconstitutional under the Fourteenth Amendment’s Equal Protection jurisprudence, the very congressional act that granted Indians citizenship in the United States would be rendered unconstitutional.” That’s absurd and silly. Congress can grant citizenship to whomever it wants, in part because the Fourteenth Amendment doesn’t limit Congress in any relevant way. But this is a moot question anyway, because nobody’s claiming that “the classification of ‘Indian’” is itself unconstitutional. Congress can, indeed, categorize people based on tribal citizenship. But that’s not what ICWA does. It applies—and no other federal Indian law does this—based on a child’s eligibility for tribal membership, and that depends exclusively on biological ancestry. A ruling that this provision of ICWA creates a racial classification would have no effect on any other Indian law, since no other Indian law uses this race-based categorization.

The bottom line is simple: HCN gets a bucketful of Pinocchios for this effort to “fact check” without the facts. For a more thorough discussion of ICWA that addresses these and other common misconceptions, see “Escaping the ICWA ‘Penalty Box,” in the Children’s Legal Rights Journal.

Timothy Sandefur is the Vice President for Litigation and holds the Duncan Chair in Constitutional Government at the Goldwater Institute.