September 14, 2021
By Timothy Sandefur

Lawyers representing would-be adoptive parents, as well as states and tribal governments, have all filed petitions with the U.S. Supreme Court asking the justices to decide the constitutionality of the Indian Child Welfare Act (ICWA), a federal law that restricts the ability of states to protect Native American kids from abuse and neglect, or to find them permanent, loving adoptive homes. The lawsuit, called Brackeen v. Haaland, resulted in more than 300 pages of opinions from the Court of Appeals, which ended up striking down some crucial portions of ICWA as unconstitutional.

Among other things, those judges ruled that ICWA illegally forces state child welfare officers and judges to enforce a federal regulatory scheme—something that’s prohibited by the “anti-commandeering” rule expressed in the Supreme Court case of Printz v. United States. That rule says states are required to obey federal law, but cannot be compelled to administer federal law. If the federal government wants to regulate, for example, gun sales (at issue in the Printz case), it must enforce that rule itself. ICWA violates that rule, however. In fact, unlike any other federal law, ICWA is never enforced by federal officials, but is solely enforced by state child welfare officers and judges.

That’s because ICWA forces state child protective services to meet a higher burden of proof in cases involving child abuse, if the children involved are classified (solely on biological criteria) as “Indian children.” That means that “Indian children” must be more abused and for longer than their white, black, Asian, or Hispanic peers before the state can step in to protect them. And it means that states must return abused “Indian children” to the families that are abusing them—often with fatal results. What’s more, ICWA forbids states from rescuing Native kids from abusive households unless the states first make “active efforts to restore the Indian family.” That means states must provide various social services to these families—more services than are required for families of other ethnicities, because the law only requires “reasonable efforts,” not “active efforts” in the case of non-Indians.

In the Brackeen case, the Fifth Circuit Court of Appeals ruled that these requirements violated the “anti-commandeering” rule and therefore exceeded Congress’s authority. True, the Constitution gives Congress power to regulate “commerce with the Indian tribes,” but it also gives Congress power to regulate “commerce among the several states,” which was what Congress was relying on in the Printz case. But the Court said in Printz that this power didn’t include the power to force states to enforce federal statutes—and the same is true when it comes to Congress’s power with respect to tribes.

In my article “The Federalism Problems with the Indian Child Welfare Act” (forthcoming in the American Indian Law Review) I discuss this issue in greater detail. But there’s an even more disturbing problem with ICWA: the fact that it targets children of one particular racial category.

ICWA limits who may adopt children who are classified as “Indian”—specifying that they must be adopted by “Indian families,” as opposed to white, black, Asian, or Hispanic families. That language is important because although ICWA is supposedly designed to preserve the stability of tribes, this section does not say that a child of, say, Cherokee descent must be adopted by members of the Cherokee tribe—it says that the child must be adopted by an “Indian” family. That means she may be adopted by a Seminole or Inuit family, but not by a black or Asian family.

The Fifth Circuit concluded that this part of ICWA was not only unconstitutional, but downright irrational, because if the law’s goal is to keep tribes together, this provision doesn’t serve that purpose.

But it’s worse than that. ICWA defines the term “Indian child” as a child who’s either a tribal member, or who is eligible for tribal membership and who is the biological child of a tribal member. Rules for eligibility differ from tribe to tribe, but all tribes define eligibility solely in terms of biological ancestry. That means a child like Lexi—the six-year-old who was snatched from the arms of the foster family where she had lived for four years—qualified as “Indian” due solely to the fact that her great-great-great-great-great-great-great grandfather was a full-blooded Choctaw. She had no cultural, political, religious, or linguistic connection to the tribe, but still qualified as an “Indian” child—whereas a child who’s fully acculturated, speaks a tribal language, or practices a Native religion, would not qualify, if she lacked the requisite biological ancestry. Due solely to her racial profile, she, like countless other Native children, was subjected to the trauma of being taken away from her Mommy and Daddy…due to her race.

It gets worse. In the Brackeen case itself, the child’s biological parents agreed to have their child adopted by the Brackeen family, who—the birth father said—were “the only family the child has known.” Yet tribal government officials nonetheless interceded to block the adoption and to send the child to live on a reservation in another state with race-matched strangers. As the Brackeens’ lawyers write:

Under [ICWA], biology is the touchstone. So, for example, if a couple enrolled in a tribe had one adopted child and one biological child, neither of whom was enrolled in the Tribe, only the biological child—and not the adopted child—would be an ‘Indian child’ under ICWA. ICWA’s definition thus is expressly based on lineal descent, which is to say it is based on race. In fact, ICWA’s definition would apply even in spite of the biological parent’s wish not to enroll their child in a tribe…. By defining its applicability based on biology, ICWA expressly draws “[d]istinctions between citizens solely because of their ancestry”—distinctions that “are by their very nature odious to a free people.”

You can learn more about the racial discrimination at the heart of ICWA here. The fact that both sides in the Brackeen case have asked the Supreme Court to take the case increases the likelihood that the justices will resolve this dispute—one that has critical implications for the safety and well-being of America’s most at-risk children. You can learn more about this and other ICWA cases here.

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

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