Monday saw the Supreme Court announce that it would be hearing a suit challenging the constitutionality Indian Child Welfare Act, a federal law that governs foster care, child welfare and adoption for Indian children. It is a 44-year old federal law. The case—which resulted in more than 300 pages of conflicting opinions in the lower court—began when a Native couple in Texas was unable to care for their child and agreed to have him adopted by a white family named the Brackeens. That led to a legal battle involving some controversial elements of the law. The ICWA treats Indian children differently from other children of minority races, such as black or Asian children. Furthermore, it violates the long-standing principle of federalism and orders state officials and employees to comply with federal mandates.
Consider the laws governing termination of parental rights to understand the controversies. Child welfare officers in every state have the right to terminate parental rights of abusive parents if they can prove that the child is at serious risk. The ICWA states that state officials must prove the risk to “Indian children” by using expert witnesses in case involving them. This is a higher standard than what’s required in criminal law where experts witnesses are not needed. By requiring more evidence of harm to “Indian” children, the ICWA basically requires them to have been more abused than other race kids in order for officials be able rescue them. Because termination of rights must be done before an infant can be adopted, it is easier to place someone on death row rather than find an adoptive family for an Indian child.
This phrase is placed in quotation marks, because the ICWA defines Indian child as not just children of tribal members but children who are Indian children. Eligible For membership, a parent of a child is required to be enrolled. That means a child with no cultural connection to a tribe can still be deemed “Indian” based exclusively on her biological ancestry—whereas a child who is fully acculturated to a tribe might It is notIt is solely because she has blood in her veins.
Morton v. Mancari The Supreme Court ruled that laws giving tribal members different treatment than non-members does not violate the Constitution’s anti-race-based legislation rules. This is because tribal membership, which is political and not racial in nature, was declared illegal by the Supreme Court. The ICWA is based upon ancestry and not membership. It even covers children who have never been tribal members. This means that it is not an ethnic, but a political distinction.
Also, the ICWA does not apply on reservations—it only governs states. The ICWA does this in perverse ways. Take, for instance, the “active efforts” rule. Each state has its own laws that require the government to make reasonable efforts to help the parents and bring back the child if it takes the child from a danger home. It means giving parents social services that will help improve their lives. This is not the only way. It is not required in cases involving “aggravated circumstances,” such as sexual molestation—which makes sense: it would be wrong to send kids back to situations where officials know they will only be harmed again.
The ICWA demands that you do just this. The ICWA requires active efforts and not reasonable efforts. This is also not permissible in the face of “aggravated conditions”. It means that “Indian children”, as they are known to be abusive, must be returned time after again. These results are often fatal.
For example, in 2014, there was a baby named Antonio RenovaHe was removed from the abuse of his parents and put in foster care. This family provided him with a loving and safe home for 4 years. He could have been adopted if his parents were from Japan or Kenya. Antony, however, was of Crow descent so his case was governed under the ICWA. His foster parents tried to adopt him but a tribal court had him return to his parents. He was then beaten to death months later.
Oklahoma officials were aware that Oklahoma’s 5-year-old was a thief Declan StewartHis mother was a victim of her boyfriend’s abuse. If he had been Australian or Mexican, they could have rescued him—but because he was Cherokee, the ICWA’s “active efforts” requirement forced them to return him to the home, where in 2007 he was raped and murdered.
Even though the ICWA rules have less severe outcomes, they still cause terrible harm to children. This is the most important headline. Lexi case, a 6-year-old California girl, whose last full-blooded Choctaw ancestor was her great-great-great-great-grandfather, wept as she was snatched from the arms of the foster family who had cared for her for four years. She was sent to live with non-relatives in Utah—a fate that would have been illegal, had she been white.
In 2016, a tribal court near Phoenix ordered that a 5-year-old Ohio boy be taken from the foster family with whom he had lived for nearly his whole life and sent to live with strangers on the reservation instead—despite the fact that he had never even been to Arizona. Fortunately, a state court BlockadeThis is the final result. In a separate however, Case now pending before the Alaska Supreme Court, a tribal court ordered another 5-year-old boy to be taken from the foster family he lived with for four years and sent to New Mexico instead—even though the child is from a different tribe than the one that issued the order. Since then, his Alaskan blood relatives have not heard anything from him.
Surprising psychological harm is inflicted by seizing a child from his family. RegulatedThe Bureau of Indian Affairs recently adopted a ban on judges considering trauma while deciding the future of an Indian child.
Obviously, state child services systems also have many problems, and for the state to intervene in family relationships—particularly to take kids away from parents—is an extreme step, one that should be reserved for truly drastic situations. The ICWA is supposedly meant to redress injuries inflicted upon Native families by state agencies who were too zealous and targeted Native parents as part of a forced integration with white society. This problem is not solved by the ICWA. Instead of improving the care provided to at-risk children, the law denies Native children legal protection against abuse. Instead of ensuring “Indian children don’t require foster care or adoption”, it makes it more difficult for them to get these protections when they are needed.
The ICWA actually deprives Native parents the right to safeguard their children by using the active efforts rule in intrafamily conflicts. Washington 2016 CaseFor example, one tribal mother wanted to end the rights of her ex-husband who was a violent non-Native criminal so her husband could adopt her child. However, the court determined that she had to comply with the “reasonable suspicion” rule. The ICWA was not able to prevent the dissolution of the Native family. It only prevented it. Formation This Native family was created for the use of an unfit father. Arizona, 2017. CaseTribal father wanted to terminate his ex-wife’s rights due to her neglect and alcoholism. But state courts decided that he must make active efforts to reunite the couple. He was forced by federal law to place his children under the responsibility of someone he considered incompetent.
The Supreme Court has made a decision regarding constitutionality It is clearAlthough Congress may override the state laws it cannot force states to comply with federal laws. The ICWA, however, does just that—in fact, it’s the only federal law that is enforced only by state officials. Consequently, a federal judge struck down parts of the ICWA last spring in Brackeens.
The Supreme Court also has gehaltenParents may still have the right to make their own decisions about safety for their children, but it is not possible for government officials to do so. However, the ICWA permits tribal bureaucrats and Native parents to make decisions that override those of Native parents. You can find the BrackeenThe Brackeens have cared for the child nearly their entire lives and agreed to adopt the child’s biological parents. But the ICWA allowed tribal officials to veto the parents’ decision and order the child sent to live with strangers on the Navajo reservation instead—a fate narrowly averted when a state court intervened. Childlike “Lexi” Not so fortunate..)
What’s more, the ICWA imposes racial limits on foster care and adoption, requiring that “Indian children” be placed with “Indian” adults—regardless of their tribe—instead of adults of other ethnicities. This means that a Navajo-born child will have to be adopted by a Seminole or Cherokee family and not a black or white family. Simply put, the ICWA is based on the concept of “generic Indianness”—a racial classification imposed on indigenous Americans by white settlers centuries ago.
The most striking feature of the ICWA is its disregard for the “best interests” rule. This rule allows judges to assess each child’s individual needs in their unique situations. However, the ICWA doesn’t apply a uniform standard to all Indian children. Texas California courts have even concluded that there are two different “best interest” rules: one for white, black, Asian, or Hispanic kids, which prioritizes their individual needs—and a separate but equal one for “Indian” kids, which views their individual needs as less important than the desires of tribal governments.
History of federal and state treatment of Native Americans has been dreadful, often horrifying. There is no question that the ICWA was passed to prevent abusive practices like forced assimilation. The ICWA is the latest example of Congress’s policies that Congress says will help the Indian, but actually makes things worse. Native American children are the most vulnerable demographic. They are at greater risk of being abused, neglected, addicted to drugs, or suicide in America than any other group. Their protection is hindered by the ICWA. The Supreme Court should uphold their rights to equality of treatment.