ICWA’s “Expert Witness” Requirement is a Barrier to Protecting Native American Children

November 20, 2019
By Timothy Sandefur

The Rhode Island Supreme Court issued an interesting decision this week in a case involving the Indian Child Welfare Act (ICWA)—specifically, its “expert witness” requirement. That’s the rule that says an abused or neglected Indian child may not be rescued from his abusive parents unless the state proves, beyond a reasonable doubt, on the testimony of expert witnesses, that failing to terminate the parents’ rights would pose a serious risk to his safety. This requirement applies to no other ethnicity in the United States—and that’s good, because it’s so extremely demanding—more demanding, in fact, than the requirement that applies in death penalty cases—that it poses a serious threat to children’s safety and well-being.

In fact, the Supreme Court rejected the “reasonable doubt” standard in a 1982 case, because it “would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.” Yet ICWA imposes that requirement in cases involving one specific ethnic group: children who are biologically eligible for membership in an Indian tribe. As a result, these kids must be more abused for longer before the state can rescue them, compared to kids of any other race.

But ICWA goes even further and also requires the testimony of “expert witnesses,” an expensive and time-consuming requirement that stands as yet another barrier against efforts to protect at-risk Indian kids. And what kind of “expert witness” is required? As is often the case with ICWA, the law’s definitions aren’t clear. A few years ago, the Bureau of Indian Affairs issued guidelines saying they must be experts in tribal culture. But the law doesn’t actually require that, and it’s puzzling why cultural experts would be helpful in cases that don’t involve disputes over culture, but over a child’s health or safety. That was the issue the Rhode Island court addressed in its ruling.

The case involved a 5-year-old child called Roman, who was born with serious heart problems, and whose mother was accused of neglect almost immediately after his birth. State officials intervened and tried to help the mother, but—as the court explains at length in the decision—she was uncooperative. She suffered from bipolar disorder, and, in addition to instances of domestic violence (and even an incident in which she was arrested after an episode of “road rage”), she failed to attend Roman’s medical appointments, refused to get him medicine he needed, fed him in ways that were dangerous given the medical equipment he was required to use, and posed a serious risk to his safety in other ways. These factors would have justified the state taking any child into protective custody. As the justices said, “an exhaustive review of the record leaves this Court thoroughly convinced that the termination of Mother’s rights is in Roman’s best interest.”

But because Roman is eligible—based exclusively on genetic factors—for membership in the Narragansett tribe, his case was subject to ICWA’s less protective and more complicated rules, including the “expert witness” requirement.

The mother’s lawyers argued that the state hadn’t offered testimony from tribal cultural experts. But the court rejected that argument. ICWA requires testimony from “a qualified expert witness,” said the court, but it doesn’t require that the person be an expert in tribal culture. “Moreover, it would exceed the bounds of common sense to hold that an expert witness on Indian cultural affairs was necessary to prove that a child’s reunification with a parent was ‘likely to result in serious emotional or physical damage to the child’ when the evidence for and against termination is noncultural…. [I]n culturally-neutral termination cases, such as the one before us now, about what would an expert in Indian affairs testify? It is our considered opinion that, while at least one qualified expert witness is necessary under [ICWA], that expert may be qualified in any relevant area if, as here, the case presents no culturally-relevant issues.”

That’s the right call: Courts in child welfare cases should focus on the circumstances of the individual child, not on vaguely defined sociological concerns. Unfortunately, several other courts have ruled that ICWA overrides the “best interests of the child” standard in cases involving Indian children—and that it imposes a one-size-fits-all, nationwide rule that Indian kids should always be treated in accordance with its racial categorization.

And there’s a second issue in the Rhode Island case that touches on this subject, as well—because Roman’s mother is not Native American.

Instead, Roman’s eligibility for tribal membership comes from his biological father, who abandoned him at an early age (and did not challenge the termination of his rights). Why, then, should ICWA apply at all in this case? If ICWA’s purpose is protect Indian children from being unduly removed from Indian families, it has no role in a case that only involves a child’s relationship to his non-Indian mother. “This Court has grave reservations as to whether the provisions contained in [ICWA] apply,” declared the justices. They pointed with disapproval to a Washington state case from 2016, in which a non-Indian father was allowed to use ICWA’s restrictions to prevent an Indian mother from taking steps to protect her child. Although the Rhode Island court ultimately did not decide this issue, its wording raises an important problem with ICWA: Its burdens are often imposed on cases that have nothing to do with the purposes behind ICWA—with consequences that harm the very children ICWA was supposed to help.

Roman’s case is a sad one—as all ICWA cases are sad cases—but the decision is likely to result in a better life for him and for other children in similar circumstances. And the decision is a reminder of the need to protect at-risk children from the well-intended but deeply flawed ICWA.

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