Law Review Editors Behaving Badly

Although the Indian Child Welfare Act was a good-intentioned law, it has gone horribly wrong. It was intended to protect Native American kids from racist, overzealous officials, who are sometimes too eager to end Native Americans’ parental rights. In practice, it is a racist law.

In my book Classified: America’s Untold History of Racial Classification, I address some of the issues with the ICWA. The ICWA, for example, insists on the fact that a tribe with no ties to a child other than common Indian genetic heritage cannot veto an adoption by a parent not of Indian descent. Before a non-Indian adopter can adopt a child, who may be 1/64 Cherokee, they must first get consent from not only the Cherokee tribe but also any other tribe that might object.

A recent en banc ruling by a divided Fifth Circuit regarding the constitutionality of the Act as racially discriminatory and because it unduly interfers with state legal or judicial processes has put the ICWA under severe scrutiny.

Tim Sandefur (president of Goldwater Institute) and a friend, is among the most loudest critics against the ICWA. The American Indian Law Review published an article he wrote about the law. My limited knowledge has shown that academics are not encouraged to disagree with the Indian Law Establish’s support of laws such as ICWA. Tim surprised to find that the AILR had accepted Tim’s article in May and that Tim would publish the article with them.

Uninitiated people may not be aware that law review almost never revoke offers after they have been accepted. If there is evidence of academic misconduct (e.g. large-scale plagiarism), then this would only be an acceptable reason. Any issues that are not covered by law review editors will be resolved with great effort.

The AILR’s editor in chief wrote Tim last week that there are “significant problems that emerged from your article, which have raised concerns to the Board of AILR. The Board has decided, after careful consideration and long debates, that publication of your article is not in the best interests.

Tim details the situation in his blog. Tim says that when Tim asked for clarification, an editor gave him a fake list of complaints. This clearly masks the fact that the editor made a clear decision to withdraw acceptance from political reasons. Tim is entitled to an apology by both the AILR as well as the law school for prompt publication of his article. However, he also has a backup proposal in place just in case. The AILR may decline to apologize. If that happens, the dean and faculty advisor should step in.

Unfortunately, rather than this being an isolated incident, from speaking to colleagues this seems to reflect a trend of law review editors being much more likely than in the past to object to articles that express opinions that go against, or even simply don’t endorse,  progressive policies.

While we’re on the topic, thanks and kudos to Southern California Law Review for publishing my article “The Modern American Law of Race.” Although the article isn’t anti-progressive in any way, it concerns race. The author questions the validity and wisdom of the current status quo on official racial classifications. It would suffice to spike the article at all law review today.