July 9, 2020
By Timothy Sandefur

The Supreme Court’s extraordinary decision today holding that the eastern half of Oklahoma is tribal land will likely have seriously deleterious consequences for one of the most vulnerable minorities in the country: Indian children. That’s the term used in the Indian Child Welfare Act (ICWA) for children who are genetically eligible for membership in a tribe, and who are deprived of their rights to a fair and race-neutral hearing in cases involving their welfare. Today’s decision closes off an important doorway to justice for children and families who want their cases to be decided by impartial courts that follow constitutional rules.

ICWA creates a series of race-based restrictions on foster care and adoption for “Indian children”—a term defined as children who are either members of a tribe or who are “eligible” for membership and have a biological parent who’s a tribal member. While different tribes have different rules for eligibility, all of them are based on biological ancestry only. That means a child is an “Indian child” even if he or she is not and never becomes, a member of a tribe—simply because they qualify on biological grounds alone, for membership. ICWA then requires that “Indian children” be placed in foster care with, or adopted by, “other Indian families” (regardless of tribe!) and not with adults of other races. In short, ICWA literally creates a rule of “separate-but-equal” for Indian children.

Or, more accurately, separate but substandard—because ICWA also requires that Indian children be more abused and for longer before the state can step in to protect them, as opposed to kids of other races. And when a court tries to decide a case involving the welfare of an Indian child, a whole bunch of unusual rules apply—rules that are less protective of the rights of the child than the rules that apply to kids of other races.

Where does the Oklahoma decision come in? ICWA treats Indian children differently based on whether they live on reservation or not. If they do, then the tribal courts have the sole authority to decide their cases—which is as it should be, since tribal land is subject to tribal government. But if an Indian child lives off the reservation, then the case goes to state court first, and the state court is required to send the case to tribal court, unless there’s good reason not to.

This is important because tribal courts are not bound by the United States Constitution. They’re not required to afford the parties such basic protections as due process and color-blind justice. Today’s decision shifts a large segment of children from one category to the other—that is, it gives tribal courts exclusive jurisdiction over their cases, and it bars these children (and the families who love them) from the opportunity to argue that their cases should be decided in a state court, where the protections of the Constitution apply. Even worse, the Indian Civil Rights Act, which was supposed to give people a way to go to federal court when tribal governments violate their rights, has been basically neutered by a Supreme Court decision from the 1970s.

Thus the bottom line: An entire class of children—singled out exclusively by the blood in their veins—is now subject to a tribal court system that they cannot escape from, and where their rights to due process and equal treatment simply do not apply. Nor can these children, or the adults who love them, use the civil rights laws to protect themselves the way that people can in state court cases.

Now, here’s the ironic upside. ICWA is so bizarrely designed that it actually does not apply in tribal courts. That means its race-based prohibitions on foster care and adoption of at-risk Native American children—and its effective nullification of the “best interests of the child” standard—are not legally binding there, the way they are in state court. As a result, some research has shown, ironically enough, that tribal courts might be more willing to allow interracial adoptions of Indian children, precisely because they are not bound by the racial restrictions that ICWA imposes on state judges.

Thus it’s too early to say what the ultimate consequence for Indian children will be. On one hand, federal law will now ensure that children who are biologically Indian—who may have no idea that they have Native American blood in their veins and who may never become tribal members—are denied the basic protections of due process that apply to Americans of all other races. But on the other hand, precisely because ICWA’s racially discriminatory mandates aren’t necessarily binding in tribal courts, some of these children may be fortunate enough to have their cases decided based on their actual best interests.

It’s too bad that such color-blind justice isn’t the rule for everyone.

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

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