Indian Child Welfare Act Harms Native American Children With

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A federal law intended to protect Native American children does more harm than good because its substandard rules deny them equal protection, a new Goldwater Institute paper explains.

In the paper, Escaping the ICWA Penalty Box: In Defense of Equal Protection for Indian Children, Goldwater Institute Vice President for Litigation Timothy Sandefur delves into the history of and the rationale behind the Indian Child Welfare Act (ICWA), a law that gives tribal governments power to control the fate of abused, neglected, or abandoned Indian children. While ICWA was enacted with the goal of preserving and strengthening Native American families, Sandefur’s paper discusses several landmark ICWA cases that illustrate the damage the law can do to Indian children, families, and tribes.

Under ICWA, children with only a very small percentage of Native American blood who previously have not been raised on tribal lands or had any contact with a tribe can be forced out of loving, safe homes and into other homes, based on their race. “ICWA creates a separate and substandard set of rules for at-risk children, based solely on their race,” Sandefur explains. “It does this by deeming a child ‘Indian’—and therefore subject to ICWA’s different rules—based solely on biology, without any regard for social or cultural ties to a tribe, or lack thereof.”

ICWA imposes race-based foster care and adoption preferences, meaning that Indian children must be placed in foster care with or adopted by Indians—regardless of tribe—rather than by adults of other races, despite a drastic shortage of Native American foster or adoptive homes. This situation makes it more difficult to protect Indian children from abuse, and harder to find them permanent, stable homes.

“Indian children are citizens of the United States, entitled to the same protections every other child enjoys—particularly the ‘best interests of the child’ rule. But ICWA overrides that rule,” Sandefur says. “In one case last year, California courts even ruled that while white, black, Hispanic, or Asian children are entitled to one type of ‘best interests’ rule, a different kind of ‘best interests’ rule applies to Indian children.”

Among the ICWA-related cases the Goldwater Institute is currently litigating:

  • In July, the Institute filed a petition asking the U.S. Supreme Court to take a case that would decide whether ICWA overrides the wishes of Native American parents.
  • Also in July, the Goldwater Institute filed a petition for review in the California Supreme Court on a case asking whether it is constitutional to apply ICWA to children based solely on their genetic, rather than cultural, Indian heritage.
  • The Institute also represents a Native American mother challenging the application of ICWA to override an Indian parent’s wishes.
  • In an Ohio case, an Arizona-based tribe is trying to use ICWA to take an Ohio child away from his foster family and send him to live on an Arizona reservation he has never even visited.
  • A federal class action civil rights lawsuit is challenging the constitutionality of several ICWA provisions.

“Fifty years after Brown v. Board of Education, it’s shameful that we still have a set of separate and unequal laws for children on the basis of their race,” Sandefur says. “ICWA takes away the individualized legal protections that Indian children would otherwise enjoy under state law, and it’s important that Native American children are given the same rights that are guaranteed to children of all other races.”