There’s a long, horrific history of government intrusion into Native American families, of breaking them up and sending children to non-native families and off-reservation boarding schools. These children endured abuse and forced assimilation. There’s no way to measure the damage inflicted by governments on individuals, communities, and cultures, in part because of inadequate records. Some children disappeared. Their bodies have yet to be found. Yet today’s children still lack meaningful protections against family separation.
Congress passed the Indian Child Welfare Act, or ICWA, in 1978, in recognition of how devastating, and wrong, these practices were. The object of the ICWA: keeping Native American families together. To that end, the act made it more difficult to separate Native American children from their families. It also, critically, expanded the authority of tribes, as well as Native parents, to block efforts to remove children, terminate parental rights, and make placements with non-Native families. But 40 years later, even before many of these protections were realized, a court has struck down the legislation altogether.
The ICWA mandated that Native American children “shall be placed in the least restrictive setting which most approximates a family” and “within reasonable proximity to his or her home.” It also established a hierarchy of adoptive placement preferences for children:
(i) a member of the Indian child’s extended family;
(ii) a foster home licensed, approved, or specified by the Indian child’s tribe;
(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.
How effective was it? Only somewhat. Local and state governments are still violating the ICWA with impunity.
Despite this legislation, South Dakota officials are openly violating not just the ICWA, but basic precepts of social services vis-à-vis adoption when it comes to Native American children. They’re being removed on illegitimate pretenses. Some kids are taken from their families simply because a parent was arrested. Meanwhile, parents are being denied for months the opportunity to contest the removal.
NPR reported on South Dakota’s overt violations of tribal and family integrity in 2011. Daily Kos community member Aji did so in 2013. Three years later, I wrote a feature on Pennington County’s practices for Pacific Standard. In 2018, with great sadness, I reported on a federal appellate court’s reversal of a rare win for Native American parents for Daily Kos.
This is all to say, ICWA enforcement has always been lacking at best. Given the chance, the Supreme Court neglected to uphold it. That 2013 decision, which denied a biological Native American father custody of his daughter after her non-Native mother placed her for adoption with a non-Native couple, was so outrageous that the late Justice Antonin Scalia dissented.
Opponents attacking the ICWA’s application in specific situations have often included the argument that the act is unconstitutional. Conservative groups have tried overt constitutional challenges before. Until now, that argument has failed. But on Oct. 4, a federal district court judge in Texas ruled that the ICWA is unconstitutional. Why? Because it discriminates against non-Native would-be adoptive parents.
The suit was initiated by a non-Native couple who’d fostered, then sought to adopt, a child whose parents are both Native American—one Cherokee, one Navajo. They were joined by two other couples and the Texas, Louisiana, and Indiana attorneys general.
The decision’s based on the Fifth Amendment’s Equal Protection Clause. The court found that the legislation amounted to a race-based test, though the legislation actually cites tribal affiliation. Going further, the judge concluded that the ICWA was also unconstitutional in the amount of power it delegates to tribes.
The decision razes parental and tribal rights to protect Native American children and preserve tribal integrity. It also opens the door for attacks on so-called Indian law more broadly. It’s the equal protection piece that’s most worrying. What does it mean to find that legislation specific to Native Americans is impermissibly “race-based”?
Here’s Dan Lewerenz of the Native American Rights Fund:
“It introduces perhaps an entirely new world of Indian law. And we worry that this might be what the plaintiffs intend, that this is not just an effort to undermine ICWA, but to undermine all Indian law.”
The Bureau of Indian Affairs has responded by reiterating support for the ICWA. Unfortunately, if appealed, this case will go to the Fifth Circuit, which hears federal appeals from Texas, Louisiana, and Mississippi. It’s one of the most conservative circuits in the country.
Five of the Fifth Circuit’s 17 active judges were appointed by Trump. That means there are as many Trump judges as judges appointed by any Democratic administration. Even if an appeal ended up before a fair three-judge panel, all conservatives would have to do is grant an en banc, or full court, hearing. Then it’s 12 against 5.