January 13, 2020
By Timothy Sandefur

We filed a brief this morning in the Fifth Circuit Court of Appeals in a lawsuit challenging the constitutionality of the Indian Child Welfare Act (ICWA). That’s the federal law that imposes a series of restrictions on efforts by state child welfare workers to protect children classified as “Indian.”

These rules make it harder to protect Indian children from abuse or neglect—and virtually impossible to find them adoptive homes when needed. Take, for example, ICWA’s “active efforts” rule. Under the law that applies to all other children, child welfare agencies can rescue kids from abusive families if they first make “reasonable efforts” to help the parents—for example, by providing them with rehabilitation services or counseling. These “reasonable efforts” are not required, however, in cases where there are “aggravated circumstances”—such as where the parents are systematically abusing or molesting the child. (That’s common sense: You don’t want to send abused kids back to the families that have mistreated them.)

But ICWA imposes a different rule on Indian kids. In their cases, the state must make “active efforts”—a term that’s never been clearly defined, but requires more than “reasonable” efforts—and this “active efforts” requirement is not excused in cases of molestation, etc. As a result, this rule requires that an Indian child be more abused, and for longer, than other kids, before the state can step in to defend them.

ICWA also imposes race-based restrictions on adoption. It’s against the law to delay or deny an adoption based on the race of the kids or the parents—except for Indian kids. In their cases, federal law requires the state to discriminate, and to place Indian children with “other Indian families” (regardless of tribe) rather than with white, black, Asian, or Hispanic families.

The consequences of these and other racial restrictions in ICWA are cases like that of Antonio Renova, the Montana child who was killed last fall after he was taken away from the foster family that was caring for him by a Crow tribal court which decided to place him with a Crow family, instead. There was plenty of evidence that they were unfit, but the tribal court judge said, “I’ll be damned if I’ll be the first Crow judge to let a white couple adopt a Crow child.” All that mattered in Antonio’s case was the color of his skin—not his safety.

As a result, he was brutally murdered shortly before Thanksgiving. Sadly, his tragic story is only one of many.

Defenders of the ICWA status quo claim that it’s not racial discrimination, because tribes aren’t races. But that argument ignores how ICWA works. Its classification does not depend on any political or cultural or social factors, such as whether the child lives on tribal lands or speaks a Native language. Instead, it turns solely on genetic considerations. If a child is “eligible for membership” in a tribe—and eligibility depends solely on biological ancestry—and has a “biological parent” who is a tribal member, then that child is deemed “Indian” under ICWA. Children who fall within the genetic category of “Indian” are targeted by ICWA, even if they have no idea that they’re Native and even if they never become tribal members.

More than a year ago, a federal judge in Texas ruled that ICWA’s race-based restrictions are unconstitutional, but a three-judge panel reversed that decision in November, on the grounds that ICWA uses biological ancestry not for racial reasons, but as “a proxy” for the child’s “not-yet-formalized tribal affiliation.” Now the court is reconsidering that holding.

In the brief that we—along with the Cato Institute and the Texas Public Policy Foundation—filed today, we urge the court to uphold the trial court’s ruling. For one thing, using ancestry as a “proxy” for future political affiliations is just another way of saying “national origin discrimination,” and that’s just as unconstitutional as racial discrimination. Legal precedents that allow the government to treat tribal members differently than non-members don’t apply to ICWA, because unlike other federal Indian laws, ICWA applies not to adults who choose to participate, but to children whose parents were members of a particular nation. And that’s just as unconstitutional as overt race-based discrimination.

One reason that’s important is because many news reports falsely claim that a ruling against ICWA would threaten the viability of other federal Indian laws, such as the Indian Gaming Regulatory Act. That’s simply not true. No other Indian law is triggered by a person’s genetics alone, as ICWA is. (And that means a ruling against ICWA would not affect other Indian laws.)

Unfortunately, that is only one of many misrepresentations about ICWA circulating in both the media and in many of the briefs in this lawsuit. So our brief addresses this and other Frequently Asked Questions about ICWA. It’s written in a reader-friendly format, not technical legalese, and we urge you to read it over to be better informed about why this case is so important.

The bottom line is simple: ICWA isn’t any kind of affirmative action program. On the contrary, it’s the government giving a group of people less protection because of the blood in their veins. All Native Americans are citizens of the United States, entitled to the same equal protection as all other Americans. Yet federal law deprives them of the protections that kids of other races enjoy—and further victimizes the most at-risk demographic in the United States.

You can learn more about the Institute’s ICWA work here.

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

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