October 13, 2021
By Timothy Sandefur
More than a dozen states have recently chosen to recognize the second Monday in October not as Columbus Day but as Indigenous Peoples’ Day, in an effort to acknowledge the nation’s indebtedness to Native Americans, as well as the many injustices they have experienced over the centuries. It’s fitting, then, that the Supreme Court is now poised to consider a case involving one of the greatest injustices ever inflicted on Native Americans.
The case involves a federal law called the Indian Child Welfare Act (ICWA), which effectively bars states from protecting Native children from abuse and denies them opportunities to find permanent, caring adoptive homes. Enacted in 1978 with the goal of preventing state child welfare agencies from taking children away from their Native American parents on insufficient grounds, ICWA ended up going too far in the other direction. Today, instead of protecting kids from harm, it now stands as a major threat to their safety.
ICWA categorizes children as “Indian” based exclusively on their biological ancestry. Even kids who are not tribal members, speak no tribal language, and have never lived on reservation qualify because they are “eligible” for membership due to the blood in their veins. Then the Act imposes a separate set of rules whenever state courts review cases involving their safety—rules less protective than those that apply to other kids.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute. He has litigated several legal challenges to the Indian Child Welfare Act.