October 8, 2021
By Timothy Sandefur
The Goldwater Institute today filed a brief asking the U.S. Supreme Court to review the constitutionality of the Indian Child Welfare Act (ICWA), a federal law that effectively bars states from protecting Native American kids from abuse or neglect and makes it virtually impossible for them to find adoptive homes when needed.
The lawsuit, called Brackeen, resulted in more than 300 pages of opinions when it was decided by the Fifth Circuit Court of Appeals this spring—and those opinions resulted in a complex decision upholding some parts of ICWA and striking down others for various constitutional reasons. As a result, everyone involved in the case—tribes, state governments, adoptive parents, and the federal government—asked the Supreme Court to review whether ICWA passes constitutional muster.
One reason ICWA is unconstitutional is that it treats children differently based on race: While states protect white, black, Asian, or Hispanic children against abuse or neglect under one set of rules, ICWA imposes a separate, federal set of rules for “Indian” children. And these rules are less protective than the rules that apply to kids of other races: They require “Indian” children to be more abused, and for longer, before the state can intercede.
ICWA also requires that “Indian” children be adopted by “Indian” adults, rather than by adults of other races. And that marks another constitutional flaw: ICWA tells states how to operate their own state child welfare laws, which is something Congress has no constitutional authority to do. On top of that, ICWA even forbids Native parents from taking steps to protect their own children—barring them from terminating the rights of abusive ex-spouses, for example (even where those ex-spouses are not themselves Native!). This, too, is unconstitutional: The Court has already said that birth parents have a fundamental right to make decisions like that, and the government may not give anyone else the power to interfere. Yet ICWA allows tribal governments to override the decisions of Native parents who want to do what’s right for their kids.
In our friend-of-the-court brief—filed alongside our friends at the Cato Institute and the Texas Public Policy Foundation—we point out that ICWA is not only unconstitutional, but a detriment to America’s most at-risk children. Indeed, ICWA is directly responsible for the deaths of children whom state social workers knew were being abused, but were powerless to protect. That’s not only illegal, it’s immoral.
Timothy Sandefur is the Vice President of Litigation at the Goldwater Institute.