Family Malpractice

For decades before the ICWA was passed, child welfare officials often took Indian children from their parents, sometimes on flimsy pretexts, and sent them to live with white families or in boarding schools where they were punished for speaking tribal languages or practicing tribal religions. Many were abused or molested. But ICWA went beyond ending such abusive practices. It also expanded the power of tribal governments—placing them, as the Supreme Court put it, “on a parity” with parents. In practice, that means tribal officials can block adoptions parents agree to and even veto a mother’s efforts to protect her kids.

The problems begin with ICWA’s expansive definition of “Indian children.” ICWA applies not just to tribal members but to children who are “eligible for membership” and are the biological children of members. Every tribe has its own eligibility criteria, but all are based exclusively on genetics. That means a child like Lexi, who has no cultural connection to a tribe—speaks no tribal language, practices no Native religion, does not live on a reservation—qualifies as “Indian,” whereas a child raised on a reservation by Native parents would not qualify if she doesn’t fit the racial profile. DNA is all that matters.

ICWA, then, subjects Indian children to rules that differ from those that apply to kids of all other races. It overrides the “best interests of the child” rule and segregates the kids by race, even if this is contrary to the wishes of parents.

That’s what happened in an Arizona case last year when Justine, a tribal member who lives off reservation, asked a state judge to terminate the rights of her ex, then in jail for several violent crimes, so that her new husband could adopt her boy. Had the child been of any other race, ordinary state law would have applied—which requires a parent to prove by “clear and convincing evidence” that terminating the other parent’s rights is warranted. That rule was adopted in 1982, when the U.S. Supreme Court ruled that the lenient “preponderance of the evidence” standard was too lax in termination cases, but that the stringent “beyond a reasonable doubt” requirement was too severe. Today, every state uses the “clear and convincing” rule because the more strict “reasonable doubt” standard, as the Supreme Court said, “would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.”

ICWA, however, overrides state law and mandates the “beyond a reasonable doubt” standard instead. It also requires testimony from expert witnesses. That’s a more stringent requirement than applies in criminal courts, meaning that it’s easier to put defendants on death row than to terminate parental rights in cases involving Indian children. An Arizona judge therefore forbade Justine from terminating her ex’s rights and from completing the adoption. A different rule would have applied if her son had been white.

ICWA wasn’t meant to police family disputes. But because it applies to all cases involving Indian children, it’s regularly invoked in such cases. That’s what happened in the case of baby Ingrid. According to news reports, tribal police removed her from the hospital thanks to an order that the baby’s grandmother obtained from a tribal court, based on allegations the grandmother levied against the baby’s father. ICWA lets tribal courts issue orders in cases involving children who are genetically entitled to tribal membership, even if they and their parents don’t reside on tribal lands. But state courts are normally asked to approve such orders before they’re executed. Because no such approval occurred in Ingrid’s case, tribal officers were forced to surrender the child a few days later.

But because ICWA applies to children based on their genetics, it’s not unusual for tribal courts to assert authority without regard to the geographical and constitutional limits on their jurisdiction. Those limits normally prevent judges from deciding cases involving people who lack what lawyers call “minimum contacts” with the court’s location. The Constitution forbids, for instance, a Maine judge from deciding an adoption case in Texas, even if the child’s grandparents once lived in Maine. ICWA, by contrast, gives tribal governments power to force state judges to transfer child welfare cases into tribal court even if the child lacks “minimum contacts” with the tribe.

In one ongoing California lawsuit, three Fresno-area orphans whose parents were killed in a car accident are the focus of a custody fight between non-Native relatives and the Miwok tribe, of which their father was a member. Although the children never lived on tribal lands—located nearly 200 miles away—a tribal judge commanded that the children be handed over.

In another case now pending in Ohio, a tribal judge in Arizona ordered Ohio officials to send a child who was born in Ohio and has lived there his entire life to live on a reservation near Phoenix with strangers he’s never met. The Ohio court of appeals ruled in March that such race-based jurisdiction would violate the “minimum contacts” rule, but tribal lawyers, undaunted, plan to appeal again. No court would tolerate such tactics if the child were black.

Still more disturbing is ICWA’s requirement that state officials make “active efforts” to keep families together—meaning they must often return Native children to abusive homes. State law typically requires only “reasonable efforts,” meaning that parents must be offered rehabilitation or basic assistance before their children are taken away permanently. But that requirement is excused in cases involving “aggravated circumstances,” which means states don’t have to return children to homes where they’ve been abused or molested. ICWA’s “active efforts” requirement, though, is stricter. It requires more than “reasonable” efforts (though courts have never said what, exactly), and there’s no exception for “aggravated circumstances.” That means Indian children must be returned time and again to homes where they are mistreated.

In one recent Nebraska case, three Sioux girls were repeatedly sent back to their abusive father—and when state officials finally took them away for good, the state’s highest court overrode that decision on the grounds that the state hadn’t satisfied the “active efforts” requirement. After still more abuse, a juvenile court judge at last ordered them permanently removed in an order that acknowledged that they had “experienced lifetimes of trauma.” No such trauma would have occurred if the girls had been Asian.

ICWA also imposes race-matching requirements on foster care and adoption of Indian children. It requires that they be placed in Indian foster homes rather than with non-Native foster families—and that they be adopted by “other Indian families” rather than by non-Natives, except in rare circumstances. Because these requirements apply to Indians generally, regardless of tribe, the result is that an Alaskan Inuit child must be adopted by a Chickasaw family in Tennessee—regardless of the cultural gulf that separates these tribes—before she can be adopted by parents of other races. Combined with the “reasonable doubt” requirement for termination of parental rights—usually a prerequisite to adoption—these rules make it extraordinarily difficult for Indian children to be adopted, even if the birth parents approve.

In one recent Texas case, the parents of a Navajo boy decided they wanted his foster family to adopt him because, as his birth mother, J.J., testified, “I can see he loves them.” Tribal officials disagreed, though, and they persuaded a judge to take the boy from his foster family and send him to live on the reservation in New Mexico instead, with a couple he’d known for only three hours. Fortunately, tribal officials reversed themselves months later—but the delay and anguish would never have happened if the child had been Hispanic.

ICWA’s anti-adoption rules are so burdensome that foster families who might otherwise offer homes to kids in need choose not to shelter Indian children, lest they become attached and then suffer the agony of separation in a slow, expensive, race-based lawsuit. When the Phoenix New Times asked a foster mom who also worked at the state’s Department of Children’s Services and was familiar with ICWA whether she would agree to foster an Indian child, her answer was clear: “ ‘No,’ she said. ‘Nope. Nope. Nope.’ ”

ICWA’s supporters also claim that it’s legitimate to treat Indian children differently because tribal governments are sovereign. But all Indians are citizens of the United States, and the courts of France or China could never assert power to decide child custody cases involving children in Nevada or Connecticut just because the children involved were of French or Chinese descent. Nor could Congress create such an arrangement. In Reid v. Covert (1957), the Supreme Court ruled that the federal government cannot make a treaty with a foreign country that subjects American citizens to a separate court system that lacks our Constitution’s due process guarantees. Yet that’s exactly what ICWA does. All Indian children are citizens of the United States, but this law segregates them into a distinct, less-protective legal system that nullifies the “best interests” rule and sometimes forces cases into tribal courts where the Constitution doesn’t apply.

That doesn’t preserve sovereignty—and it certainly doesn’t expunge the injustices of past generations. Instead, it inflicts new injustices on America’s most vulnerable minority. Native American children are at greater risk of virtually every social pathology, from gang membership to alcoholism to molestation, than any other demographic. Yet ICWA subordinates their needs to racial considerations—for the express purpose of keeping Indians separated from their fellow Americans.

The story of baby Ingrid, at least, seems to have a happy ending. She has been returned to her parents. But for too many Indian kids, the story ends differently—often in poverty, neglect, and abuse. There are adults out there ready and willing to help them, except that federal law says they’re the “wrong” race. It’s time we set aside these obscene racial barriers and give these children the same legal protections that all other American kids enjoy.

Timothy Sandefur is vice president for litigation at the Goldwater Institute, which represents litigants in several cases challenging ICWA, including the Ohio, Arizona, and California cases discussed above.