January 22, 2020
By Timothy Sandefur

Judges of the Fifth Circuit Court of Appeals are hearing arguments this morning in the Brackeen case, which challenges the constitutionality of the Indian Child Welfare Act (ICWA), a 40-year-old federal law that imposes a separate set of rules on child welfare cases that involve Native American children—rules that are less protective of their welfare and deny them the equal protection to which they’re entitled. The Goldwater Institute has long fought to ensure that all American kids, regardless of race, receive the same legal security, and we’ve filed friend-of-the-court briefs in Brackeen and other ICWA cases to that effect. Our 2015 investigative report Death on a Reservation pulled back the curtain on the damage ICWA has wrought on Indian children, and our 2017 report Escaping the ICWA Penalty Box detailed the racially discriminatory laws that ICWA imposes on these vulnerable kids.

The plaintiffs in Brackeen are a group of state attorneys general, and families who opened their homes to abused and neglected Native American kids, only to be told that they were of the “wrong” race, and that “Indian children” must be adopted by “other Indian families” instead of families of other races. That barrier against adoption is only one of the many ways that ICWA draws a color line across the lives of at-risk children.

In October 2018, a federal judge in Texas ruled ICWA unconstitutional, not only because it discriminates based on race, but also because it infringes on the authority of state governments, who, under our Constitution, bear chief responsibility for protecting children. The law forces state judges to follow different rules of evidence and different procedures in cases involving these children, and often forbids state child welfare officers from rescuing abused and neglected Indian kids—a circumstance that has often resulted in the deaths of children that the state knew were being abused, but whom they were powerless to help.

Defenders of the ICWA status quo insist the law isn’t based on race, but on tribal membership. That’s important because under a 1974 Supreme Court decision called Mancari, Congress is allowed to treat tribal members differently from non-members without facing the stringent constitutional limits against racial discrimination. But that argument doesn’t fly here because of ICWA’s unique definition of “Indian child.” Unlike all other federal Indian laws, ICWA is triggered not by tribal membership, but by the child’s biological ancestry. It defines an “Indian child” as a child who is “eligible” for membership and whose “biological parent” is a tribal member. That means a child who has no cultural connection to a tribe—doesn’t speak a tribal language, doesn’t practice a Native religion, has never visited tribal lands—qualifies as an “Indian child” based solely on the blood in her veins, while a child who does have all these cultural connections with a tribe but doesn’t meet the genetic profile would not qualify.

ICWA’s race-based rules go beyond barring non-Indian families from adopting Indian children. It also lets tribal governments override the wishes of Native parents themselves when it comes to protecting their kids. Consider the case of T.A.W., a Shoalwater child in Washington State whose mother, a tribal member, wanted to terminate the rights of her abusive, career-criminal ex, so that her new husband, a tribal member, could formally adopt her son. The ex was white, not Native. But ICWA sharply limits the ability of courts to terminate the rights of parents in cases involving Native kids, even where parents want to. So the Washington Supreme Court rejected the mother’s pleas. The same results followed in the S.S. and J.P.C. cases in Arizona—in which tribal members wanted to protect their children from abusive spouses, but weren’t allowed to, thanks to ICWA.

Equally shocking is ICWA’s geographical reach. The law doesn’t apply on reservations; it applies to children who live off-reservation. And it gives tribal governments power to force state judges to transfer child welfare cases into tribal courts anywhere in the nation based on the child’s genetic ancestry. In one ongoing Ohio case, tribal officials in Arizona have demanded that a child who was born in Ohio and who has lived there his entire life with an Ohio foster family, be sent to live with strangers on a reservation in Arizona, based on the fact that his tribal ancestry matches theirs. (An Ohio court ruled this unconstitutional in 2018, but tribal officials continue to oppose the foster family’s efforts to adopt him—because they’re the wrong color.)

Native children are America’s most at-risk demographic: They’re more likely to suffer from abuse, neglect, molestation, violence, and suicide than any other group of kids. They deserve to have their best interests prioritized. But ICWA overrides the “best interests” test—in fact, courts in several states have declared that it creates a different kind of “best interests” test, one that applies only to Indian children. A 2016 California court decision ruled that while a child’s best interest is the paramount consideration in cases involving other children—but for Indian kids, the child’s best interest is only “one of the constellation of factors.” What is that, if not literally a revival of “separate but equal”?

ICWA was passed with good intentions, in an effort to protect Native families against wrongdoing by government agencies that had abused their powers in the past. Yet it struck a tragic and misguided compromise by subordinating a child’s best interests to racial considerations. Today’s Indian kids don’t need to be put in racially defined boxes. They need to be given the same protections that are given to children of all other races.

You can read our “FAQ” brief in the Brackeen case here, and learn more about our ICWA work here.

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

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