March 24, 2020
By Timothy Sandefur

The Goldwater Institute filed a brief in the Texas Supreme Court today arguing that the Indian Child Welfare Act (ICWA)—a federal law which reduces legal protections for at-risk kids of Native American ancestry—is unconstitutional. ICWA classifies children as “Indian children” based not on whether they’re members of tribes, but on whether their biological ancestry qualifies them for tribal membership. And children deemed “Indian” are then denied legal protections that apply to kids of other races. 

For example, ICWA overrides the “best interests” test that applies to children of other races. Although Texas law requires that courts prioritizes a child’s best interest—which means focusing on the particular needs of a child in her specific circumstances—ICWA instead imposes an across-the-board rule that “Indian children” must be placed with “Indian” adults, even if they’re from a different tribe. ICWA also requires more evidence of abuse or neglect before state officials can step in to protect a child. For instance, although the rights of unfit parents can be terminated based on “clear and convincing” evidence of harm to the child, ICWA requires a far more burdensome standard in the case of Indian children: it requires “beyond a reasonable doubt” based on expert testimony. That’s a more stringent rule than even applies to criminal cases.

ICWA also overrides the decisions of Native American parents, such as the mother of Y.J., a child of Navajo ancestry, who wants her child adopted by the B. family. That decision is clearly in Y.J.’s best interests, and if Y.J. were of any other race, that adoption would have been approved without delay. But because Y.J. is an “Indian child,” ICWA allows the Navajo government to intervene and veto the mother’s decision. That’s what they did here, asking the Texas Supreme Court to override the decision of a trial judge who found that the adoption Y.J.’s mother approved of was in the child’s best interests.

We argue that ICWA violates the U.S. Constitution’s prohibition on race-based laws. Although the Supreme Court said in a case called Mancari that those prohibitions don’t apply to laws that differentiate between tribal members and non-members, the Mancari decision didn’t involve a law like ICWA, which is triggered not by tribal membership, but by a child’s biological ancestry. And although the Navajo government’s lawyers argue that ICWA is constitutional based on 19th-century treaties between the federal government and the tribe, those treaties were written long before the enactment of the Indian Citizenship Act, which makes all Native Americans citizens of the United States.

That’s an important point because the Navajo government argues that “Indian children” should be regarded as “foreign nationals” (to quote their brief). But Indian children aren’t foreigners. They’re citizens who live not on tribal lands, but in suburbs and cities like their fellow Americans of other races. They’re entitled to the same strong protections as all other children, and Texas owes them a legal and moral duty to ensure that their best interests—as individuals—are protected. You can read more about the lawsuit here.

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

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