January 5, 2022

By Timothy Sandefur

The Supreme Court Justices will meet this Friday to decide whether to review the constitutionality of the Indian Child Welfare Act (ICWA), a federal law that effectively bars the adoption of at-risk Native American children by adults of other races and prevents state child welfare officers from protecting abused or neglected Native kids. As George Will writes in his column today:

“The ICWA, an early bow toward multiculturalism, buttressed tribal identities by strengthening tribal rights. For example, tribes can partially nullify states’ powers to intervene against tribal parents’ abuse endangering children. And the ICWA conferred rights on tribes, rights adjudicated in tribal courts, including the right to require Native American children be adopted by Native Americans. Equal protection of the laws? Not under ICWA.”

Last spring, judges on the Fifth Circuit Court of Appeals ruled that certain provisions of ICWA violate the Constitution’s federalism principles because they block states from implementing their own child safety laws, and force state agencies to enforce federal standards—contradicting the legal principle known as “anti-commandeering.” Some of the judges would have gone further, and declared other provisions of the law unconstitutional because it differentiates between people based on race. The judges’ opinions debating these questions total more than 300 pages, and the resulting decision led to both the plaintiffs and the defendants asking the Supreme Court to resolve the matter. You can read their briefs here.

The Goldwater Institute, joined by our friends at the Cato Institute, filed this brief urging the Court to take up the case. ICWA was passed with good intentions—to prevent state officials from abusing their power and taking kids away from families unnecessarily—but today, it stands as a major obstacle to the protection of Native American kids, who are at greater risk of abuse, neglect, violence, addiction, and suicide, than any other demographic. Rather than protecting these children, ICWA actually restricts the ability of states to protect them, and gives special powers to tribal governments that interfere even with the rights of Native parents. In this lawsuit, for example, the children’s birth parents—both tribal members—agreed to the adoption, because the Brackeen family are the only parents the kids have ever known. Yet tribal government officials said no, because the Brackeens’ skin is the wrong color. That’s shameful—and it’s not in the best interests of Indian children.

You can learn more about ICWA and our work to protect the rights of Native kids and parents here.

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

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