April 2, 2021
By Timothy Sandefur

In a letter to members of the Senate Indian Affairs Committee today, the Goldwater Institute urged passage of S.325, a bill that would extend the deadline for the Commission on Native Children to complete its review of the problems confronting one of America’s most vulnerable minorities. The Commission’s work was disrupted by the COVID-19 pandemic, and with its deadline looming, it’s important for Congress to allow it extra time to finish its work.

Native American children face many hardships, but one of the severest is the Indian Child Welfare Act (ICWA), a federal law that hampers the ability of child safety officers to protect Native children who are abused or neglected—and makes it virtually impossible to find these children adoptive homes when needed. ICWA imposes a set of rules to govern child welfare cases involving children that the law deems “Indian”—rules that make it harder to rescue kids from abuse and that even restrict the rights of Native parents who want to protect their own children. And, unlike any other federal Indian law, the Indian Child Welfare Act is triggered by biological criteria, meaning that a child who has no cultural connection to a tribe and has never set foot on a reservation is deemed “Indian” based purely on the blood in her veins—and is thus subject to the Act’s burdens—whereas a child who is fully acculturated to a tribe is not deemed “Indian” if she does not fit the Act’s racial profile.

The consequence is that although the Act was intended to protect Native kids, it actually hurts them—depriving them of the legal protections that children of all other races enjoy. It essentially treats “Indian children” as if they were foreigners, when in fact they, like all Native Americans, are citizens of the United States and deserve the equal protection of the law.

It’s critical that Congress complete its important work in evaluating the situation of Native American kids, and it’s particularly imperative for the Commission to examine the way the Indian Child Welfare Act strips these kids of their constitutional rights and takes away the legal protections that they and their parents need.

For more on the Indian Child Welfare Act, check out our Equal Protection for Indian Children Project page.

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

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