What Should a Post-ICWA America Look Like?

The Supreme Court is poised to strike down parts of a race-based law that deprives Native American kids of legal protections others enjoy. Congress must be prepared to fix the Indian Child Welfare Act

Equal treatment under the law? The U.S. Supreme Court may soon strike down parts of a federal law that strips Native American children of the legal guarantees other kids enjoy. Image Credit: Justin Lewis/Getty Images

Will the Supreme Court finally put an end to a 40-year-old law that treats Native American children differently from—and worse than—kids of other races? We’re on the verge of finding out—and finding out how the rights of Native kids might change for the better going forward.

Last week, the justices heard four hours of legal arguments over the constitutionality of that law, known as the Indian Child Welfare Act (ICWA), which sets rules states must follow in cases involving the abuse, neglect, foster care or adoption of children of Native American ancestry. When enacted in 1978, ICWA aimed to protect Native Americans from legal abuses whereby states had tried, in the first half of the 20th century, to take Native children from their parents and force them to assimilate with white society. But as often happens, Congress went too far in the other direction. Today, ICWA strips Native children of the legal guarantees other children enjoy, restricts states’ ability to rescue them from harm and imposes race-based restrictions on adoption that make it practically impossible for these kids to find safe, loving, permanent homes when needed.

Last week’s legal arguments focused, of course, on ICWA’s egregious constitutional flaws, rather than questions of policy. By establishing a distinct set of rules for children of one particular race, ICWA violates the Constitution’s prohibition against laws that discriminate based on ancestry. And by compelling states to implement federal policies—policies that are less protective of children than those the states would prefer to implement—ICWA violates the “anti-commandeering” principle, which says states must obey, but cannot be forced to implement, federal laws. The example that appeared to trouble the justices most at last week’s hearing is ICWA’s “active efforts” requirement, which requires state agencies to help abusive parents in regaining custody over their children—and even compels states to return abused children to homes known to be dangerous, which has often resulted in the preventable murder of Indian children. No such requirement applies to children of other races.

But if, as seems likely, the court declares significant portions of ICWA unconstitutional, what should replace it? Native Americans continue to suffer disproportionately from poverty, addiction and other risk factors that endanger children, as well as from forms of government discrimination that warrant protection against overly aggressive state agencies. In 2015, for example, a federal judge in South Dakota found that state officials were taking children from parents through summary proceedings that failed to give the parents an opportunity to defend themselves. State officers, the court said, were placing kids in foster care based only on declarations by social workers “which routinely are disclosed only to [a state judge] and not to the Indian parents, their attorney or custodians,” and which were therefore “not subject to cross-examination or challenge by the presentation of contradictory evidence.” Such tactics meant that the state’s juvenile court judges were unconstitutionally “delegat[ing] the authority to make the custody decision to a state agency or its employees.”

Abuses like this hardly justify ICWA—with its provisions depriving Native children of the legal guarantees that children of other races enjoy—but it does indicate the need for meaningful legal protections for parents and families. Fixing the law to ensure their safety is therefore a balancing act: preserving the rights of children against abuse or neglect on one hand, while on the other ensuring against overly aggressive state child protection agencies, which have the power to throw families into chaos.

Prioritize a Child’s Needs over His or Her Race

What, then, would an improved version of ICWA look like? The most important first step would be to eliminate the racial distinctions it currently imposes. ICWA requires that “Indian children”—which it defines as kids who could someday become tribal members, based solely on their biological ancestry—be placed in foster care or adoptive care with “Indian” adults. It also mandates a set of evidentiary and procedural rules for lawsuits involving these children that differ from those governing cases that involve white, Black, Asian or Hispanic kids. These rules should be replaced by race-neutral guidelines such as those that already exist in the federal Multi-Ethnic Placement Act, which forbids racial discrimination in adoption cases.

That’s not to say that matters involving race should be ignored entirely in cases involving children—but they cannot be a determinative factor. In Palmore v. Sidoti, the U.S. Supreme Court declared it unconstitutional for a state judge to order the removal of a child from a biracial couple on the grounds that the child might experience discrimination due to living with parents of different races. “The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother,” the justices declared. But they did not rule out the possibility that racial considerations might factor into a judge’s overall consideration of a child’s best interests. The “effects of racial prejudice” might, under appropriate circumstances, justify concluding that a child is better off in one household rather than another. And the “best interests of the child” test, which evaluates all the circumstances relevant to a child’s needs, would include such considerations.

That “best interests” test, in fact, should be the cornerstone of any revised version of ICWA. As things stand now, ICWA actually overrides the “best interests” test for children deemed Indian and instead imposes a one-size-fits-all federal rule which requires that they be placed within the “Indian community”—even if that means placing them with members of a tribe not their own. In last week’s hearing, federal lawyers told the Supreme Court that this across-the-board mandate doesn’t eliminate the “best interests” rule, but instead represents Congress’ determination about what is in the best interests of Indian children. But the court has already declared such blanket presumptions of “best interests” unconstitutional. “Procedure by presumption is always cheaper and easier than individualized determination,” it said in Stanley v. Illinois. “But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child.” A presumption that all children of one particular ancestry are best served by being placed with one particular kind of family is even worse; that’s not even a presumption—it’s a stereotype.

An improved ICWA would eliminate such stereotypes—striking out the race-based placement requirements for adoption or foster care in favor of a rule requiring judges to conduct individualized, case-by-case inquiries into what best serves a particular child’s needs in his or her specific circumstances. This traditional version of the “best interests” rule already applies to children of other races. Moreover, such a rule would allow judges to consider an Indian child’s tribal connections. If a child is acculturated to a tribe—speaks a tribal language, practices a Native religion, identifies as a member of the tribe—it is likely in that child’s best interests to retain those connections, and judges should strive to preserve them. But one of the more bizarre features of ICWA as it now stands is that these cultural connections cannot factor into a judge’s decision.

That was not always the case. Under a principle called the “Existing Indian Family Doctrine,” state courts in past decades declared that ICWA cannot apply if a child has no cultural or social connection to a tribe. But in recent years, courts have abandoned that doctrine, as has the Bureau of Indian Affairs, which insists that state courts impose ICWA’s separate set of rules based solely on a child’s biological ancestry, without consideration of cultural connections. That retreat was wrong. If ICWA seeks to preserve tribal culture, it should be connected to culture—and if it is to avoid violating the rule against race-based laws, it must not be triggered solely by the blood in a child’s veins. An improved version of ICWA should prioritize a child’s cultural and social ties to a tribe, as part of the overall “best interests” analysis.

Equalizing Standards of Evidence

Among ICWA’s most disturbing features are provisions that impose unusual burdens of proof in cases involving the abuse of Indian children. These rules provide, among other things, that an abusive parent’s rights cannot be terminated unless there is proof “beyond a reasonable doubt” that the child is at risk—and that such proof must be based on testimony by expert witnesses who are well versed in traditional tribal cultural practices. This is a far higher standard than is required for children of other ethnic backgrounds—whose cases are governed instead by the “clear and convincing evidence” standard. ICWA’s evidentiary standard is actually so high that it exceeds even the amount of proof required in criminal law (where expert testimony is not required) and directly contradicts the Supreme Court’s warning in Santosky v. Kramer that a “reasonable doubt” rule “erect[s] an unreasonable barrier to state efforts to free permanently neglected children for adoption.” By requiring more proof of abuse with respect to Indian children than is required in cases involving children of other races, ICWA ends up requiring that Indian kids be more hurt, for longer, before the state can protect them.

In Santosky, the court concluded that the proper standard of evidence in cases involving the termination of parental rights is the “clear and convincing evidence” standard, and since then this requirement has become standard across all states. It’s less than the “reasonable doubt” standard required in criminal law, but more than the “preponderance of the evidence” rule used in routine civil lawsuits, and it strikes the proper balance between rescuing kids from harm and protecting the rights of parents. ICWA should be amended to change the requirement to the same “clear and convincing” standard that applies to other children.

This, too, doesn’t mean traditional tribal practices or culture should be ignored. Differences between socioeconomic standards and cultural traditions should not be confused with abuse, and states should not impose on families either subjective notions about how children ought to be raised or some uniform, culturally biased attitude about what constitutes a “proper” family. Rules ensuring that courts consider cultural context in custody cases would certainly be necessary and proper to prevent the real risk that child welfare officers might impose their own personal views on parents. But as it stands today, ICWA elevates tribal politicians’ assertions about culture over the physical safety and psychological stability of children. Along with equalizing its evidentiary standard, ICWA’s “tribal cultural expert witness” requirement should be replaced with a rule that gives equal or greater weight to testimony about a child’s specific needs and circumstances.

Jurisdiction and Parents’ Rights

Another significant problem with ICWA—which is admittedly not at issue in the case now before the Supreme Court—is its ill-defined rules governing tribal court jurisdiction. The act gives tribal judges authority to decide child welfare disputes involving children who are not tribal members and who live off reservation land, which often leads these judges to claim power to decide cases in which the child has no relationship to the tribal court. In a 2018 case, for example, a tribal judge in Arizona issued an order demanding that a child who had been born in Ohio and lived his entire life in Ohio, be removed from his foster family there and sent to live with strangers on a reservation near Phoenix—even though he had never even visited Arizona.

The Constitution forbids such extreme assertions of judicial power. According to a principle lawyers call “personal jurisdiction,” a judge can only decide a case if there’s some connection between the court and the people involved in the case. That’s why a judge in Maine cannot resolve a dispute involving a traffic accident in California or a robbery in Texas. But ICWA purports to give tribal judges roving power to decide cases anywhere in the country that involve children who might be eligible for tribal membership. Some tribes have even claimed power to decide cases involving children of other tribes. Last year, Alaska’s Tangirnaq tribe, which has no court of its own, asked a different tribe—the Sun’aq—to decide a custody matter involving a Tangirnaq child, even though that child was not even eligible for membership in the Sun’aq tribe. (The Sun’aq agreed, and ordered the child be taken from his Alaska foster parents and sent to live in New Mexico; he hasn’t been heard from since.) Any amendments to ICWA should ensure that constitutional limits on jurisdiction are followed, by barring tribal courts from deciding cases where they lack personal jurisdiction.

Even more vital is an issue squarely presented by the case now before the justices: the degree to which Congress can empower tribal governments to override the wishes of Indian parents themselves. Bizarre as it seems, ICWA strips Native parents of the ability to take steps to protect their own children. The “reasonable doubt” rule, for example, often blocks Native parents from terminating the rights of abusive ex-spouses, and its restrictions on adoption enable tribal officials to block an adoption from going forward even if the birth parents approve of it. In the case now before the Supreme Court, two Native parents (a Navajo mother and a Cherokee father) agreed to put their child up for adoption by the non-Native Brackeen family. Had the child been white, Black or any other race, that would have been approved as a matter of routine. But the rules for Indian children are different: Tribal governments can intervene in such cases and demand that the child be placed with strangers of the same race, rather than the adoptive family the parents have chosen.

The reason, as the Supreme Court said in a 1989 case called Holyfield, is that ICWA gives the tribes “an interest in the child which is distinct from but on a parity with the interest of the parents.” But that idea conflicts with the court’s more recent recognition in Troxel v. Granville (2000) that parents have a “fundamental right” to “make decisions concerning the care, custody and control of their children.” The Troxel case involved a Washington state law giving grandparents the right of visitation with their grandchildren even if the parents disapproved—a law the justices declared unconstitutional because it “permit[ted] any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review.” But ICWA goes much further, allowing third parties (tribal governments) to override the parents’ fundamental right to make choices about adoption.

ICWA itself says it aims at preventing the “breakup” of Indian families. But in voluntary adoption cases, such as the Brackeen case, no family is being broken up—instead, tribal officials are seeking to prevent a voluntary adoption from occurring.

Preserving Tribal Authority—Subject to Civil Rights Laws

Nobody disputes that tribal courts should have power to decide child welfare cases occurring on reservation; indeed, tribal governments should have the same autonomy over family law matters that states have over cases occurring within their jurisdictions. The provision of ICWA that gives tribal courts power to decide child welfare matters on tribal land is unobjectionable and should be retained.

But one of the major difficulties that residents of tribal lands face is that tribal governments are not bound by constitutional rules such as the Bill of Rights. Although Congress adopted the Indian Civil Rights Act in 1968, which requires tribal governments to accord basically the same legal protections to tribal members that the Bill of Rights provides to other Americans, the Supreme Court largely neutered that act a decade later, when it said in Santa Clara Pueblo v. Martinez that federal judges cannot enforce it except in cases involving a person’s actual physical confinement. That means that if a tribal government censors free speech, takes property without compensation, imposes an excessive fine on someone or violates other constitutional rights in a manner that falls short of jailing a person, the victim’s only recourse is in tribal court. Yet these courts do not follow the rules of evidence and procedure that apply elsewhere. That effectively gives tribal governments carte blanche to override the constitutional rights that protect other Americans—and that the Indian Civil Rights Act was designed to protect.

As Spider-Man would say, with great power comes great responsibility: Tribal autonomy should go hand in hand with meaningful legal protections for the civil rights of tribal members. Reform of ICWA should coincide with reinvigorated civil rights guarantees. That would include overruling the misguided Santa Clara Pueblo decision so as to entitle victims of tribal government wrongdoing to seek redress before a neutral judge—but it should also include strong protections against state governments that abuse their powers, as in the South Dakota lawsuit.

Congress’ civil rights powers, in fact, offer a better way to protect Indians’ rights than does ICWA. In the Brackeen case, federal lawyers argue that ICWA is based on Congress’ power under the Constitution’s commerce clause, which allows Congress to “regulate commerce” with “the Indian tribes.” That claim is implausible, because even when using the commerce power, Congress cannot impose race-based rules, or force states to implement federal laws, in the way ICWA does. But Congress does have power under the Fourteenth Amendment’s civil rights provisions to take extraordinary steps to protect people who are suffering from government abuse. This power is not unlimited, of course: Congress can only act in ways that are “congruent and proportional” to the harms it seeks to remedy. But an amended version of ICWA that aims to protect parents and children against overly aggressive state agencies would be constitutional, as long as it is properly targeted at protecting individual rights. As it stands now, ICWA far exceeds those limits.

A Way Forward

Congress had the best of motives when it adopted ICWA; previous decades had witnessed significant abuses of government power that resulted in the wrongful separation of families out of a misguided effort at compulsory standardization. But in trying to prevent a repeat of these abuses, Congress ended up overriding some of the most important principles of family law—and of the Constitution. If the justices declare it invalid, Congress should be prepared to fix the law with alternatives that prioritize the best interests of Native citizens over the demands of racial politics.

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