The newest issue of Regulation is out, and it includes my article about the Indian Child Welfare Act. Here's an excerpt:
[W]hile state laws impose no racial limits on adoption or foster care, the ICWA overrides those laws and mandates race-matching by requiring that Indian children be placed with Indians except in unusual cases. The racial nature of this requirement is made clear by the fact that it gives priority to “Indian” families even if they are of different tribes, meaning that an Inuit child must be placed with a Seminole or Penobscot family instead of a white family regardless of the vast differences between those cultures. The law thus incorporates the concept of “generic Indianness”—a notion invented by white settlers who ignored the distinctions between aboriginal North Americans and regarded them as fungible. As Justice Clarence Thomas recently observed, “treating all Indian tribes as an undifferentiated mass” is “ahistorical.” It is also fundamentally racist....
Given the right circumstances, of course, Indian kids do as well as other kids. But the ICWA often prevents them from getting the support and protection they need and compromises their best interests in order to perpetuate racial separatism. Its burdensome requirements deter foster parents from taking in Indian children and make them less likely to try adopting. Although it was passed with good intentions—to prevent abuses by state officials who wield tremendous power over families that are often unable to protect themselves in court—the law often ends up harming the very children it was supposed to protect.
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