by Timothy Sandefur

February 6, 2019

Congress made all American Indians citizens of the United States almost a century ago, but the law still relegates them to second-class status in many ways.

Nowhere is this more true than in the case of the Indian Child Welfare Act (ICWA), a 1978 law that was supposed to protect Native Americans against abuses by state governments but today harms the very children it was meant to help. That’s because it creates a separate set of rules for child welfare lawsuits that involve children who are “eligible” for membership in a tribe—rules that provide less protection against abuse or neglect, and often block Native American parents themselves from taking steps to do what’s best for their kids.

Last October, a federal judge in Texas ruled that ICWA violates the Constitution in several ways. That case is on appeal now, and today we filed a brief—joined by the Cato Institute, the Texas Public Policy Foundation, and the American Academy of Adoption Attorneys—to answer some of the more common questions and misconceptions surrounding ICWA.

The main legal dilemma in the case is whether ICWA categorizes children by race—which the Constitution normally forbids—or by tribal status, which the Supreme Court said in 1973 is acceptable because that’s a “political” classification. Most laws that treat Indians differently from non-Indians are regarded as “political” classifications, and therefore pass muster. But as we explain in the brief, that’s not true of ICWA, which—alone among federal Indian laws—is triggered not by tribal membership but by eligibility for membership. All tribes base eligibility on biological factors only—meaning that political, cultural, social, religious, or linguistic factors just don’t count. And that means that ICWA applies to a child based on her biology alone. In fact, when some state courts tried to consider cultural or social factors when deciding whether to apply ICWA—the so-called “existing Indian family doctrine”—tribal governments were outraged, and state courts largely abandoned the rule. As a result, not only is biology the only factor considered in deciding whether to apply ICWA, but courts are forbidden to consider any other factors—including “political” ones.

Provisions of ICWA also make clear that it’s based on race, not political or cultural considerations. As the trial judge in this case held, it applies to children who could become tribal members—but may never do so. It also requires that Indian children be placed in foster care with “Indian” adults—regardless of tribe—and that they be adopted by “other Indian[s]”—again, regardless of tribe. That means an Inuit child must be adopted by a Seminole family rather than adults of other ethnicities—even though the Inuit and Seminole tribes have radically different cultures and histories, and their homelands are farther away than Paris is from Ankara.

This matters because ICWA imposes harmful rules on kids. This isn’t some kind of affirmative action program—ICWA’s rules are less protective of children than the rules that apply to kids of other races. Its “active efforts” rule, for example, forces state officials to return abused Indian children to the families that have abused or neglected them—which has sometimes resulted in children being murdered, molested, and repeatedly neglected, despite the state knowing that they’re suffering. For all other kids, a different, more protective standard called the “reasonable efforts” rule applies, which allows state officials not to return kids to parents who have repeatedly mistreated them.

Or consider the rule for “termination of parental rights” (TPR). If a white mother gets a divorce, later remarries, and wants her new husband to legally adopt her son as his own, she can do so through a TPR proceeding that requires her to prove by “clear and convincing” evidence that this is best for the child. But if an Indian mother gets a divorce, later remarries, and wants her new husband to adopt her son, she must prove beyond a reasonable doubt, with the testimony of expert witnesses, that the child faces serious harm otherwise. That’s an extremely high standard of proof—a higher standard than is required in death-penalty cases—and it’s a difficult and expensive undertaking that many Indian moms can’t afford. The result is that ICWA often violates the rights of Indian parents themselves. In the T.A.W.case in Washington State, for example, a non-Indian father used this rule to prohibit his ex-wife from enabling her new husband—a tribal member—from adopting her son. And in other cases, where Indian parents try to terminate the rights of abusive or neglectful exes, ICWA stands in the way.

You might think this separate and substandard treatment violates the ancient rule that the “best interests of the child” should be the foremost consideration in child welfare cases. But courts have also declared that ICWA overrides the “best interests” rule—in fact, Texas courts have ruled that the “best interests” test is an “Anglo standard” that shouldn’t be applied to Indian children. And California courts have ruled that while a child’s best interests is the most important factor for kids of other races, it’s just “one of the constellation of factors” to be considered for Indian kids.

Not only does ICWA violate the rights of Indian kids and parents, it also violates constitutional rules that give states the primary authority over family law. ICWA, after all, does not apply on reservations—it applies to children who live in cities and suburbs just like their black, white, Asian, or Hispanic peers. It forces state child welfare officers to apply its separate set of rules—something the Supreme Court has declared unconstitutional—and it forces states to treat kids differently based on race, when they otherwise would have treated those kids equally. In 2012, the Supreme Court said that’s unconstitutional, too.

Congress passed ICWA with good intentions: to prevent the breakup of Indian families and protect the rights of kids and parents. But instead, it perpetuates the long and regrettable history of denying Native Americans the legal equality to which they’re entitled. ICWA often functions in practice as an obstacle to Indian families and a burden on Indian kids, many of whom face extraordinary risks. As we explain in detail in the brief, prioritizing racial separation over the best interests of children and depriving them of the safe, loving, and permanent, adoptive homes they often need, is no “gold standard.” It’s a violation of their fundamental human rights.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.