February 28, 2022
This morning, the Supreme Court announced that it will review the constitutionality of the Indian Child Welfare Act (ICWA), the federal law that deprives Native American children of the legal protections that children of other races enjoy. As we noted earlier today, ICWA imposes race-based restrictions on foster care and adoption of at-risk Indian children, and, due to its unusual evidentiary requirements, effectively requires these children to be more abused and for longer before state child welfare officers can intervene.
On Friday, Goldwater Institute Vice President for Litigation Timothy Sandefur testified before the federal government’s Commission on Native Children about the unconstitutionality and injustice of ICWA. Here’s an excerpt from his testimony:
ICWA bars Native parents themselves from taking the steps necessary to protect their children—and deprives them of their constitutional rights, since the U.S. Supreme Court has said that parents have a fundamental right to direct the upbringing of their children. The only parents in America who are deprived of that right by federal law are Native American parents. Another way ICWA harms Indian children is through the “active efforts” requirement. Under state and federal law, if child welfare officers take a child away from an abusive family, they must take what are called “reasonable steps” to return the child to the family—to provide them with the social services they need in order to help them get back on their feet. But state and federal law do not require this if there are “aggravated circumstances,” such as systematic abuse, or sexual molestation, or drug addiction on the part of the parents. That makes sense, because it would be very bad to require child welfare officers to send children back to homes that are already known to be abusive, where they will simply be harmed again. Yet ICWA does require that. Instead of “reasonable” efforts, it requires “active” efforts…and that it is not excused by aggravated circumstances. As a result, Indian children must be sent back, time and time again, to the families that the state knows are mistreating them. The horror stories such as Declan Stewart in Oklahoma, Anthony Renova in Montana, or Josiah Gishie here in Arizona, are a direct consequence of the fact that state child welfare officers cannot take steps to protect these children—steps they could take if those children were white, black, Asian, or Hispanic.