The Most Unconstitutional Law in America

Among its many problematic provisions, the Indian Child Welfare Act forces states to allow child abuse

Laurynn Whiteshield, prior to her murder in 2013 at age 3. Image Credit: Goldwater Institute

The crimes inflicted on Native Americans over the centuries are infamous. Some, such as the Trail of Tears, were intentionally committed by racist political and military leaders who wanted to sweep Indians from the continent. Others, such as the efforts in the last century to re-educate Native Americans in boarding schools, were the consequence of paternalistic attitudes by politicians who thought they knew best how Indians should live. Either way, this dismal history stands as a stark lesson in the dangers of the government treating people differently based on their race.

Yet the federal government today still discriminates against Native Americans, and forces states to do so as well. Worse yet, the victims of this injustice are abused or neglected children. Under the 1978 Indian Child Welfare Act, state child welfare officers are often blocked in their efforts to protect these children from harm, and state judges are effectively barred from allowing non-Native adults to adopt them. Now, the Supreme Court has been asked to intervene and guarantee all Native American children equal protection under the law.

Written in reaction to decades in which state and federal officials forcibly removed Native children from their parents and placed them in boarding schools—where they were forbidden to speak tribal languages or practice Native religions—the ICWA was enacted with the best of intentions. But today, it stands as a major obstacle when states try to rescue mistreated Indian children from abusive homes. That’s because it actually reduces legal protections for these children—and imposes race-based limits on adoption that make it virtually impossible for Indian children in foster care to find permanent homes.

The phrase “Indian children” is important. Under the ICWA the term applies not only to children who are tribal members, but also to children who are eligible for membership and have a biological parent who is a member. While different tribes have different eligibility rules, they all share one thing in common: they’re all based exclusively on biological ancestry. That means children who have no cultural, political or social connection with a tribe still count, whereas children with no genetic Native ancestry do not—even if they are legally adopted by a tribal member, speak a Native language, practice a Native religion and consider themselves Native American.

Were he alive today, Texas statesman Sam Houston, who was adopted at the age of 16 by a Cherokee chief, given the name The Raven and served for years as a tribal ambassador, would not qualify as an “Indian child” because he was racially white. On the other hand, “Lexi”—a 6-year-old girl who spoke no tribal language, practiced no Native religion, had never lived on a reservation and had no cultural affiliation with a tribe—did qualify because she was 1/64th Choctaw.

Drawing these types of lines is troubling because the Constitution generally forbids treating people differently based on race. True, the Supreme Court has allowed Congress to treat tribal members differently than other Americans, on the theory that tribal membership is a political, not a racial, distinction. But the ICWA doesn’t apply just to tribal members—it applies to children who are biologically eligible for membership based on their ancestry. A child might be deemed “Indian” who never ends up joining a tribe. The ICWA therefore treats children differently because of their race.

Once a child is classified as Indian, the law mandates a set of rules for any case involving the child’s safety—rules far less protective than those that apply to non-Indian children. For example, if a white or Black child is being abused by the parents, state officials can place that child in foster care once they prove by a “preponderance of the evidence” that he or she is being mistreated. But for an Indian child, the ICWA requires “clear and convincing evidence”—a stricter evidentiary standard that is harder to establish. That rule requires more evidence of abuse before the state can step in. In other words, Indian children must be more abused before the state can intervene.

The law also imposes more stringent rules in cases in which the state seeks to terminate the parental rights. Termination of rights is typically required before a child can be adopted. Normally if a child is being mistreated, officials terminate the abusive parent’s rights based on “clear and convincing evidence” that the action is necessary. But if the child is “Indian,” the ICWA requires proof “beyond a reasonable doubt”—the highest evidentiary standard, usually reserved for criminal law cases. It also requires testimony from expert witnesses before parental rights are terminated. Even criminal law doesn’t mandate that. In other words, it’s easier to put someone on death row than to terminate parental rights and find an adoptive home for an Indian child.

The law also forces officials to return Indian children to abusive families, under a rule known as “active efforts.” In cases involving non-Indian children, state officials must make “reasonable efforts” to preserve the family unit before they take a child from a parent’s custody. This requirement does not apply, however, in cases of severe mistreatment, such as sexual molestation, because it would be wrong to send children back to abusive situations. But the ICWA requires “active efforts” instead—a term the law doesn’t define but which state courts have interpreted as meaning something more than “reasonable,” and which is not excused in cases of severe abuse. This means social workers must send Indian children back to the families that are hurting them—often with deadly results.

Take the case of young Antonio Renova. Montana officials knew his family was beating him, so they put him in foster care in 2014. He lived with that family for nearly five years and had he been of non-Indian ancestry, they could have adopted him. But he was a Crow Indian—so when his foster parents expressed an interest in adopting him, state and tribal officials instead sent him back to his birth parents. Months later, they beat him to death.

Or consider the case of 5-year-old Declan Stewart. Oklahoma child protection officers knew he was being beaten by his mother’s boyfriend. Had he not been Indian, they could have found him a safe home to live in. But because he was Cherokee, they were forced to return him to his mother’s custody. And in 2007, her boyfriend raped and murdered him.

Laurynn Whiteshield was only 3 when she died. She and her sister Michaela were raised by a foster family—until the foster parents expressed an interest in adopting them. But their ancestry was Spirit Lake, so officials from that tribe instead placed them on the reservation, in the care of their grandfather. A month later, his wife murdered Laurynn, and Michaela was returned to foster care.

Not only does the ICWA reduce the legal protections for Indian children, it also imposes race-based restrictions on adoption, mandating that they be adopted (if family members are unavailable) by other Indians regardless of tribe—meaning a Lakota child could be adopted by a Seminole or Penobscot family, for example, in spite of the vast cultural and historical differences among the tribes. And because the law applies to children based on genetic ancestry, not political or cultural connections, the result can be astonishingly cruel.

“Lexi,” the young girl mentioned earlier, had lived with her foster parents for four of her six years of life, considered their other children her siblings, and called her foster parents “Mommy” and “Daddy.” Until 2016, that is, when, thanks to the ICWA, she was taken from them and sent to live in Utah instead. The trauma is unimaginable.

As Ojibwe author David Treuer puts it, “Culture isn’t carried in the blood, and when you measure blood, in a sense you measure racial origins.” But as far as the ICWA is concerned, blood is more important than a child’s individual needs.

In fact, the ICWA supersedes the long-standing “best interests of the child” rule that is supposed to guide all child custody cases. The Montana Supreme Court has explained that “while the best interests of the child is an appropriate and significant factor in custody cases under state law, it is improper” in ICWA cases because the “ICWA expresses the presumption that it is in an Indian child’s best interests to be placed in conformance with [the law’s] preferences.” But for Congress to dictate from Washington what is in the best interests of all Native Americans is precisely what has caused so much injustice in the past.

Worse still, California and Texas courts have ruled that there are actually two different “best interests” rules. While the best interests of the child are “the state’s top priority” in cases involving children of other racial origins, in cases involving Indian children, the child’s best interests are only “one of the constellation of factors” a court should consider. That’s literally the separate-but-equal argument struck down by the Supreme Court.

Because it violates so many constitutional rules, the ICWA may be the most unconstitutional law ever enacted. Not only is it race-based, but it also forces states to enforce federal regulations in violation of what courts call the “anti-commandeering” rule. That rule says that while Congress can require states to obey federal law, it can’t compel them to enforce it. But unlike every other federal law, the ICWA is  enforced only by state officials.

Moreover, the ICWA dictates how state judges can interpret their own state laws by changing the evidentiary standards and legal procedures state courts must use. That’s another thing no other federal law does. The ICWA doesn’t apply on reservations or in tribal courts. It simply commands state social services and state judges who try to protect children who live off-reservation and who—but for their race—are indistinguishable from their Black, white, Asian or Hispanic peers.

The ICWA also violates the constitutional rights of Native parents themselves. In Troxel v. Granville (2000), the Supreme Court said birth parents have a fundamental right to direct the upbringing of their children, and that the government cannot give anyone else power to block their choices. But the ICWA gives tribal governments the power to veto the decisions of Native parents—or even overrides those decisions as a matter of federal law. For example, parents must sometimes terminate the rights of abusive spouses to protect their children from harm. But the ICWA’s requirements—“beyond a reasonable doubt,” expert witness testimony and “active efforts”—are too burdensome and expensive for many parents to satisfy.

In 2016, an Arizona father named Garrett tried to terminate the rights of his abusive, alcoholic ex-wife, Stephanie. Because the children were members of the Colorado River Indian Tribes, the ICWA’s more burdensome restrictions applied. The court therefore ruled against Garrett because by forbidding Stephanie from contacting the children, he had violated the “active efforts” rule.

Amazingly, the ICWA even applies if the spouse in question is non-Native. In one Washington state case, a tribal member mother wanted to terminate the rights of her abusive, non-Native ex so that her new husband could legally adopt her son. The court said no—because she had not engaged in “active efforts” to repair the relationship between the children and their birth father. In other words, the ICWA allowed the non-Native father to veto the family decisions of this Native mother.

These considerations led the Fifth Circuit Court of Appeals in April to declare some portions of the ICWA unconstitutional. In a dramatically divided set of opinions spanning more than 300 pages, the judges sparred over whether the law draws race-based distinctions or unconstitutionally commandeers states. They finally invalidated some provisions—including the “active efforts” requirement and the race-based adoption rules—while leaving others standing. Now, federal, state and tribal courts, along with would-be adoptive families, have all asked the Supreme Court to review the case.

The justices should grant that request and strike down this poorly written law. Native American children are the most at-risk demographic in the country, facing a greater likelihood of abuse, neglect, drug addiction, alcoholism and suicide than children of any other race. If anything, they need more legal protection, not less. But for more than 40 years, the Indian Child Welfare Act has stripped them of the security that other American children enjoy and elevated considerations of race over their safety and well-being. It’s time for that to stop.

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