Maybe the welfare of Indian kids should come before the interests of tribal governments. That seems to be the conclusion of the Arizona Supreme Court last week, which allowed a child born to a member of the Gila River Indian Community in 2014 to be adopted by non-native parents.
The child (known in court documents as “A.D.”) tested positive for amphetamines and opiates at birth, and was removed from the mother by the Arizona Department of Child Services at 5 days. When the baby was about a month old, the tribe tried to intervene in deciding where to place the child. Under a 1978 federal law, the Indian Child Welfare Act (ICWA), tribal governments have a say over where children with the slightest trace of Indian blood are placed if there’s any dispute over custody.
In practice, this has meant that if parents voluntarily put such a child up for adoption, tribal governments can block the child’s placement with a non-Indian family—even if that child has never set foot on a reservation; even if the biological mother thinks a non-Indian family might provide a better home; even if the Indian family has no particular connection to Indian culture or heritage; and even if a non-Indian family off the reservation promises that they will expose the child to Indian culture.
The Gila River leaders first offered up various people within the tribe to foster A.D. But all eight of the candidates fell through: Six did not pass background checks and two decided against fostering. It was then a non-native couple, Sarah and Jeremy H., took in the child. The tribe did agree that it was appropriate to sever the biological parent’s rights. But when the foster parents attempted to adopt A.D. in 2015, the tribe moved to block them.
Lawyers for the Goldwater Institute argued that once the parental rights are severed the ICWA does not apply. The Arizona Supreme Court agreed. While this clarification about the reach of the ICWA was important—it has put tribes on notice that they don’t have unlimited powers to intervene in such cases—it does not address what many have argued is the fundamentally unconstitutional nature of the ICWA.
The court left some important questions open, such as why taking race into account in adoption cases is illegal for every group in the United States except Native Americans. And why is anyone determining custody of a child based on anything other than the best interests of that child? Why does a tribe’s quest to ensure its demographic and cultural future matter when the welfare of a minor is at stake? And perhaps most importantly, are American Indian children really receiving equal protection under the law?
But the facts of this case do shine an important light on some pragmatic concerns with the ICWA. While there are many Indian children who are in need of foster parents and adoptive ones, they are often coming from communities that don’t have stable homes to spare.
The rate of child abuse among Native Americans is twice as high as the national average. And the situation is worse on reservations. For example, an estimated one out of every four girls and one out of every six boys in Indian country is molested before the age of 18. Much of this abuse has been concentrated in particular communities, such as Spirit Lake in North Dakota, which, according to a 2012 report in the New York Times, had the highest percentage of sex offenders of any area in the country.
While the original intent of the ICWA was to stop what was perceived as the too-frequent removal of Indian children from their communities, the truth today is more complicated. There is no evidence that children are being taken away without sufficient cause. And many of these kids lack options within their communities.
Mark Fiddler, a member of the Turtle Mountain band of Chippewa Indians, worked as a public defender in Minnesota for many years. He used to think the most important thing was for Indian kids to be with Indian parents. But then he realized it was much more important for them to be in safe and stable homes, regardless of the race of the parents.
“If you talk to residents of reservations,” says Fiddler, “you realize this has been going on for generations.” On the “macro-level,” he notes, “you have this narrative about disproportionate placement rates”—that is, the idea that Indian children are being removed from their homes at a higher rate than children of other races. But then, says Fiddler, “there is the micro-level of reality with parents.” He says that there’s a “cycle of dysfunctional parenting that is passed from generation to generation.”
Which may be why there was no one available in the Gila River Indian community to take baby A.D. and why it is so important to ensure that federal law does not stand in the way of qualified and loving families of any race welcoming children in need.
The Goldwater Institute is involved in a number of cases challenging the constitutionality of the ICWA. Next month it will file cert in one such case before the U.S. Supreme Court. The details are different, but at their heart they are about the same thing. As Timothy Sandefur, vice president for litigation at the institute, says, “If you have the right blood cells in your veins, then ICWA applies a separate and substandard set of rules that makes it harder to protect you from abuse and neglect, and harder to find you an adoptive home.” These kids don’t need any more obstacles than they already have.
Naomi Schaefer Riley, a senior fellow at the Independent Women’s Forum, is the author of The New Trail of Tears: How Washington Is Destroying American Indians.
