October 26, 2021
By Timothy Sandefur
Among its many problematic provisions, the Indian Child Welfare Act forces states to allow child abuse
The crimes inflicted on Native Americans over the centuries are infamous. Some, such as the Trail of Tears, were intentionally committed by racist political and military leaders who wanted to sweep Indians from the continent. Others, such as the efforts in the last century to re-educate Native Americans in boarding schools, were the consequence of paternalistic attitudes by politicians who thought they knew best how Indians should live. Either way, this dismal history stands as a stark lesson in the dangers of the government treating people differently based on their race.
Yet the federal government today still discriminates against Native Americans, and forces states to do so as well. Worse yet, the victims of this injustice are abused or neglected children. Under the 1978 Indian Child Welfare Act (ICWA), state child welfare officers are often blocked in their efforts to protect these children from harm, and state judges are effectively barred from allowing non-Native adults to adopt them. Now, the Supreme Court has been asked to intervene and guarantee all Native American children equal protection under the law.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute. He has litigated several Indian Child Welfare Act cases.