For about two years now, I've been involved in litigation involving the Indian Child Welfare Act, a federal law that imposes rules for child abuse, foster care, and adoption cases involving Native American children. Indian kids are at greater risk of abuse, neglect, alcohol and drug use, gang membership, and suicide, than any other demographic in the United States--and these kids are American citizens, entitled to the equal protection of the law under our Constitution.
Yet they're denied these protections under this law--in fact, state courts and the federal government have announced that the "best interests of the child" rule that applies to all other children does not apply to them. This law requires that Indian kids be returned to parents who have abused them, and makes it virtually impossible for them to find adoptive homes. (It requires courts in adoption cases to use a more demanding form of the "beyond a reasonable doubt" test--meaning that it's literally easier to send a defendant to death row than for a white, black, Hispanic, or Asian family to adopt an Indian child in need.) It even overrides the decisions of Indian parents who choose to put their children up for adoption.
This is a disgrace. American Indian kids are our brothers and sisters, and deserve to have their best interests prioritized. Certainly that should matter more than the color of their skin. The foster parents and prospective adoptive families who open their homes to these kids aren't forced to do it--they do it out of the kindness of their hearts. Yet ICWA makes it so hard for this to happen that, as the U.S. Supreme Court recently said, it "unnecessarily place[s] vulnerable Indian children at a unique disadvantage in finding a permanent and loving home."
I'm exceedingly proud of the work the Goldwater Institute has done to defend these kids and the families who love them--and I hope you'll consider supporting our work. We take on these cases for no charge--but we can only do this thanks to support from people like you.
My colleague, Adi Dynar, will be arguing an important ICWA case in Ohio soon--defending the rights of an Ohio-born 5-year-old, who's lived his whole life with an Ohio foster family--but whom an Arizona tribe is trying to take away from that family and send to live with strangers he's never met on a reservation in Arizona. The Ohio Attorney General is supporting us in that case.
There was also good news last week: the Texas Attorney General has filed a new federal lawsuit challenging ICWA in a case involving a 2-year-old whose adoption was denied on account of his race. Texas child welfare officials then promptly moved to send him to live in New Mexico with a family he met once, for three hours, instead of with his foster family with whom he's lived almost his whole life. The fact that his birth family supports the foster family's desire to adopt him, and that nobody else (including the New Mexico family) has even filed a request to adopt...none of that mattered. It's good to see the Texas and Ohio Attorneys General taking up this issue. ICWA forces them to surrender their obligation to protect their citizens, and even forces them to send their states' children to live in other states.
I believe this country owes something to our Native American fellow citizens. It owes them equal protection before the law. It owes them the knowledge that they are not second-class citizens. It owes them the same legal protections accorded to all other Americans. We can't do anything today to remedy the injustices of the past--except to do justice in the present.
You can learn more about our ICWA work at the links below. Please consider supporting this important project.
"Escaping the ICWA Penalty Box" (my policy report on the constitutional problems with ICWA).
"Death on a Reservation" (our investigative report on how ICWA harms Native American kids).
"Treat Children as Individuals, Not as Resources" (a conversation series on Cato Unbound).
The "Lexi" case (a particularly egregious ICWA case).
In re. S.S.: one of our many ICWA cases.
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