Our Constitution guarantees every American’s right to the equal protection of the laws. But Native American children—who already face greater risks of abuse, neglect, drug and alcohol addiction, and suicide than any other demographic in the country—are suffering today under a discriminatory federal law that makes it harder for states to protect them from harm. That law is the Indian Child Welfare Act (ICWA), which forces states to repeatedly return abused and neglected Native children to homes where they’re at risk, and which effectively prohibits non-Native adults from legally adopting them. Today, ICWA creates a literal “separate but equal”—actually, separate but substandard—set of rules for these kids, one that overrides the “best interests of the child” principle and subordinates the safety of children to the political demands of tribal governments.
That’s why the Goldwater Institute and a group of parents affected by ICWA filed a brief in the U.S. Supreme Court today asking the justices to declare ICWA unconstitutional. Written in an unusual question-and-answer format, our brief is written in layman’s terms, and is designed to address some of the most common misconceptions about ICWA (such as the claim that it’s a “gold standard,” or that declaring it unconstitutional would undermine tribal sovereignty). Our brief is joined by the Texas Public Policy Foundation and the Cato Institute, and is filed on behalf of numerous families whose rights have been violated by ICWA’s unconstitutional burdens and mandates.
Enacted in 1978, ICWA blocks state child welfare officers from protecting abused children from harm if they qualify as “Indian,” because it requires them to provide more evidence of harm before the state can act. It also forces state officials to send Indian children back to homes they know are abusive, a requirement that doesn’t apply to children of non-Native ancestry. These and other aspects of ICWA worsen outcomes for at-risk Native kids—and sometimes to even lead to their deaths.
But ICWA doesn’t govern reservations, and it doesn’t apply just to kids who are tribal members. Instead, its definition of “Indian child” includes children who are merely eligible for tribal membership—based solely on their biological ancestry. That means a child who has no social, political, or cultural connection with a tribe, but whose distant ancestor was a tribal member, is deemed “Indian” even if she has no idea she has Native ancestry—whereas a child who’s fully acculturated to a tribe, speaks a Native language, practices a Native religion, etc., does not, if she lacks the required DNA. And because ICWA deprives “Indian” children of the legal protections that other kids enjoy, the result is that abused Native kids are deprived of the security their black, Asian, Hispanic, or white playmates get.
For years, Goldwater has done more work than any other organization in the country to defend Native children and the adults who love them from ICWA’s unconstitutional and unjust burdens. Our brief is co-signed by several families who have suffered terrible injustices as a result of this unjust law.
For example, Jeanine Kersey-Russell fostered two Native girls, Laurynn and Michaela Whiteshield, for nearly three years. But when she raised the prospect of adoption, tribal officials used their ICWA powers to remove the sisters from her care and sent them to live on the Spirit Lake reservation with adults known to be abusive. Within weeks, Laurynn was dead.
Rusty and Summer Page are a California-based couple who fostered “Lexi” for four of her six years of life—only to have tribal officials use ICWA to snatch her from their arms and send her to live with strangers in Utah, instead. The trauma she suffered from being seized from the couple she called “mommy” and “daddy” can hardly be imagined—but state courts said that didn’t matter.
Garrett Sholl is a Native father in Alaska who tried to terminate the rights of his neglectful ex-wife. Had the children been white, black, or any other race, that would have been a relatively routine court proceeding. But because the children are “Indian,” the law required him to use “active efforts” to reunite his children with his ex—meaning he was legally barred from protecting his own children because he hadn’t left them in the custody of the very person he considered unfit.
The Petersen family of Alaska took a neglected Native child into their home and fostered him for four years. But when they offered to adopt him, the tribe ordered him taken from them, on 24 hours’ notice, and sent to live in New Mexico instead. His Alaska-based relatives haven’t heard from him since. And the Clark family adopted a Tyme Maidu child with her parents’ consent—but the tribe, using its ICWA powers, moved to veto that adoption. Finally, the Iowa Supreme Court ruled that the law was unconstitutional in their case.
You can read about these and similar cases here.
This Supreme Court case is called Brackeen v. Haaland, and it involves a Texas couple who sought to adopt a child whose parents were unable to care for him. Those birth parents (Navajo and Cherokee) agreed to the adoption, but tribal officials exercised their ICWA powers to block it from being approved—they demanded that the child be sent to live on a reservation in New Mexico. That’s thanks to the law’s race-based “placement preferences,” which require that “Indian children” be placed with “Indian families” (even of different tribes!) rather than with adults who are white, black, Asian, Hispanic, etc. This racial profiling prevents Native children from finding permanent, loving, adoptive homes when needed.
At issue in Brackeen are two questions: first, when ICWA treats children differently because they’re “Indian,” is that a race-based distinction—or a political distinction? And second, does ICWA “commandeer” state governments? (In other words, does it force state officials to enforce federal law, which the Supreme Court has said is unconstitutional?) But many other issues frequently come up in discussions of ICWA. For example, what kind of power, exactly, does Congress have with respect to tribes? And wouldn’t declaring ICWA unconstitutional undermine all federal Indian law?
Our brief answers these and other questions in language accessible to non-lawyers. (And lawyers who want a more in-depth discussion can find a discussion of the racial issue here, and the federalism issue here.)
The case will likely be scheduled for oral argument this fall, and decided in the summer of 2023.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.