Are We Moving Toward Equal Protection for Indian Children?

July 9, 2019
By Timothy Sandefur

The newest issue of the Texas Review of Law & Politics contains my latest article, “Recent Developments in Indian Child Welfare Act Litigation: Moving Toward Equal Protection?” In it, I address several recent lawsuits involving the Indian Child Welfare Act (ICWA)—the federal law that imposes race-based restrictions on the protection and adoption of children who are genetically classified as “Indian.” I discuss the big Brackeen case that’s currently pending in the Fifth Circuit, as well as our recent victories in the Ohio case of In re. C.J. Jr. and the Arizona case of GRIC v. Department of Child Safety—and the Utah Supreme Court’s abysmal decision in In re. B.B.

ICWA is a complicated law with many different provisions, but hovering over it all is the second-class status that it imposes on children who qualify—solely based on their genetic ancestry—as “Indian.” ICWA doesn’t apply on Indian reservations; it only applies to off-reservation kids. And it doesn’t provide stronger protections for them. On the contrary, it deprives them of the legal protections against abuse and neglect that are extended to children of all other races. Amazingly enough, in the 21st century, the United States is still imposing race-based mandates and restrictions on America’s most vulnerable citizens. As I write in the article:

The ICWA was passed with the best of intentions. But today it is the source of many injustices to Indian children, who are too often at economic, social, and physical risk. It subordinates their best interests to other considerations, makes it harder for states to protect them from injury, and prevents, or even forbids, their adoption by safe, loving families. State courts have applied it in private, intra-family disputes in ways that block Indian parents from taking steps to protect their own children. And it empowers tribal governments in far away states to take foster children away from the only parents they have ever known, often for insufficient reasons. And too often, Indian children are treated as though they are foreigners—or like “dogwood trees, to be uprooted, replanted, then replanted again for expediency’s sake.”

Fortunately, there are grounds for hope that courts are awakening to the seriousness of the harms that ICWA inflicts on kids. If the Fifth Circuit upholds the ruling in Brackeen, which struck down its race-based restrictions on child protection, we may yet see the realization of the principle that all kids, regardless of race, deserve to be treated equally, with their best interests treated as the primary consideration.

You can read my full article here.

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