November 7, 2019
By Timothy Sandefur

The Fifth Circuit Court of Appeals announced in an order today that it will reconsider its decision from this summer in a Texas case that upheld the constitutionality of the Indian Child Welfare Act (ICWA). This is a good sign—good for Indian children, that is, who suffer under ICWA’s reduced protections against abuse and neglect. It’s also good for the families who love these children and whose rights to defend their kids’ welfare are often cut off by ICWA’s racially discriminatory provisions.

And yes, it’s about race. ICWA applies to children who are “eligible” for tribal membership—and eligibility is determined solely on the basis of genetic ancestry. A child who’s raised by tribal parents, who speaks a Native language and practices a Native religion would not qualify as an Indian child under ICWA if he fails the genetic test—whereas a child who has no idea she’s of Native ancestry, does not speak a Native language, and has never even visited tribal lands would qualify, simply because of her biological ancestry. And ICWA applies not to children on reservations—on the contrary, it does not apply there—but to children who live off reservations, in every town and city across the country, who happen to fit ICWA’s racial profile.

Although often misrepresented as a benefit to Native children, ICWA actually harms these kids in several ways:

  • It prevents state officials from rescuing children from abusive and neglectful homes by forcing state officials to establish much more evidence of abuse than is required in cases involving kids of other races. As a consequence, Indian children must be more abused, for longer, before they can be protected. The results have often been tragic.
  • It bars Native parents themselves from making decisions about what’s best for their kids. If a Native parent wants, for example, to terminate the parental rights of her abusive ex-husband so that her new husband can adopt her child, ICWA allows the ex to veto that choice—even if he’s non-Native! And if an Indian mother wants her child to be adopted by a non-Indian adult, ICWA stands in the way. (In fact, that’s what’s happening in the Texas lawsuit.)
  • It imposes an extremely narrow legal rule on the adoption of Indian kids, which says they cannot be cleared for adoption unless there’s proof “beyond a reasonable doubt” that they face serious physical harm—and that has to be proven by expert witness testimony. This is a more burdensome rule than applies even in death penalty cases. It’s so burdensome that the Supreme Court rejected it in the 1970s, saying that it “erect[s] an unreasonable barrier to state efforts to free permanently neglected children for adoption.” But that’s the rule that applies to Indian kids under ICWA.
  • It requires that Indian children be placed in foster homes of “other Indians”—even of completely different tribes—rather than with adults who are black, Asian, Hispanic, white, or of another race. Since there’s a great shortage of Native foster families, the result is that Indian children in the foster system are often bounced from one home to another until they simply “age out.” This deprives them of the stability and permanence they need.
  • It overrides the “best interests of the child” standard that applies to cases involving all other kids. In fact, some courts, including those in Texas (where this case came from), have declared that the “best interests” test is for “Anglo” kids, and that ICWA creates a “drastically different” rule for Indian kids—one that’s not so concerned about the needs of any particular child. That, of course, is literally what “separate but equal” means.

Tribal governments typically wave away these concerns, either by saying that they’re based on mere “anecdotes” (when in fact we’re talking about binding decisions from the highest courts of several states), or by pointing to abuses in the past in which Native kids were unjustly taken from their parents by child welfare agencies that abused their authority with sometimes tragic results. Those abuses were real enough, but they have nothing to do with the Texas lawsuit, in which a Native couple agreed to the adoption of their child—or the many other problems caused by ICWA. That Act was written with good intentions. But today it ends up harming America’s most at-risk demographic—Native American kids—and the adults who love them.

To learn more, check out our page on the Indian Child Welfare Act here.

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

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