Walter Olson has a point: specific horror stories are of limited usefulness, although they are important for illustrating how abstractions like “active efforts” really work in practice. But with that in mind, let’s put aside specific examples like the Lexi and Veronica cases for now. Let’s also put aside paranoid ad hominem claims about the “adoption industry,” and false accusations of racism, and let’s stipulate to the fact that before ICWA passed, federal and state governments imposed abusive policies that hurt Indian parents and children. Nobody denies that.
The question here is whether ICWA is the best we can do today for Indian children—who, again, are citizens of the United States, just like you and me. ICWA fails that test.
First, consider ICWA and race. Unless I misunderstand, Prof. Fletcher and I agree at least on one thing: the law should be the same for all children, regardless of their race. He thinks ICWA is the “gold standard,” and I don’t, but either way, the rules should be the same whether a child’s ancestry is Native American, or white, or Hispanic, or Asian, or black, or whatever. Unfortunately, that’s not how ICWA works. It classifies children as “Indian” based on eligibility for tribal membership—and eligibility is solely a function of genetics.
That bears repeating, because Prof. Carpenter says tribal membership is a political, rather than a racial, category—and that matters because the Supreme Court is highly skeptical of racial categories, but not of political ones. In Morton v. Mancari (1974), the Court distinguished between laws that apply to people who are members of tribes (a political group) and laws that are “directed towards a ‘racial’ group consisting of ‘Indians.’” And in later cases, the Court has refused to blur that distinction. In Rice v. Cayetano (2000), it struck down a Hawaii law that allowed only Native Hawaiians to vote for certain officials. Although defenders of the law relied on Mancari to argue that “Native Hawaiian” was a “political” rather than “racial” category, the court concluded that the Hawaii law “single[d] out ‘identifiable classes of persons … solely because of their ancestry or ethnic characteristics.’” Hawaii had even defined the term “Native Hawaiian” as “‘any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to [European contact] … [or] to the descendants of such blood quantum of such aboriginal peoples.’” Although this definition included factors other than race, it was still a racial classification.
Like the Hawaii law, ICWA singles out a class of people based solely on their ancestry: only children who are eligible for tribal membership (and whose parents are members) qualify as “Indian children” under that law—even if they have no cultural affiliation with a tribe.
In fact, ICWA isn’t premised on tribal connection at all, but on generic “Indianness.” Its foster-care and adoption preferences, for example, require that children be placed with “other Indian families” regardless of tribe, rather than with parents of other races. As Prof. Solangel Maldonado notes, “Under ICWA, all Indian families, other than members of the child’s tribe, are treated equally regardless of cultural, political, economic, or religious differences between the tribes, or the fact that there are over 250 different tribal languages. Further, ICWA makes no distinction between ‘local’ tribes and those located thousands of miles from the child’s tribe.” But there is no such thing as generic “Indianness.” That’s “an arbitrary collectivization”—a racist construction fashioned by whites and imposed by Congress in ICWA.
Some state courts have tried to avoid the obvious racial nature of ICWA by refusing to apply ICWA to children whose only connection to a tribe is biological. Critics have condemned these efforts on the grounds that they interfere with the tribes’ power to determine their own membership criteria. But as the California Supreme Court observed last month, there’s a crucial distinction between tribal membership—which is entirely a matter of tribal law—and “Indian child” status under federal law. The latter is subject to constitutional constraints, including the fundamental rule that the government can’t treat people differently on the basis of their biological ancestry—including in adoption cases.
Of course, even if “Indian child” status were a political, instead of a racial, category, it would still be problematic. Our Constitution forbids discrimination on the basis of national origin just as much as it forbids racial discrimination, and it’s unthinkable that Congress could establish different child welfare standards for the children of Republicans than for Democrats, or rules for children whose grandparents emigrated from Japan as opposed to other countries, or a separate adoption law just for children born in Nevada. One of the most basic elements of due process of law is that courts must address the specific facts at issue in a case, and make individualized judgments rather than blanket assumptions premised on a race, national origin, or other “immutable characteristic[s] determined solely by the accident of birth.” For kids subject to ICWA, though, the crucial factor—virtually the deciding factor—is Native American DNA.
Prof. Fletcher repeats the soundbite that ICWA is “the gold standard” of child welfare. But saying those words doesn’t make them true. In fact, ICWA:
- Blocks courts from using the protection of the best-interests-of-the-child standard, which for centuries has been considering the guidestar of all child welfare cases;
- Deprives Indian children of individualized determination of their cases, by presuming that it’s in their best interests to have their futures decided by tribal governments, simply because they have Native American DNA;
- Makes it harder to protect children from abuse or neglect, because it blocks termination of parental rights unless the likelihood of serious abuse is established “beyond a reasonable doubt” by “expert witnesses”—a higher standard than applies even in death penalty criminal cases;
- Subjects children and adoptive parents without notice or choice to the jurisdiction of tribal courts anywhere in the nation;
- Deprives children of freedom of association rights by assigning them to tribal custody and requiring state officials to enroll them in tribes.
That’s why caseworkers, lawyers, and foster and adoptive parents are often reluctant to take on cases involving Indian children. As the California Court of Appeal has put it, “ICWA requires Indian children…to be treated differently from non-Indian children…. As a result…the number and variety of adoptive homes that are potentially available to an Indian child are more limited than those available to non-Indian children, and an Indian child who has been placed in an adoptive or potential adoptive home has a greater risk…of being taken from that home and placed with strangers.”
In short, ICWA is no gold standard. It’s another example of Congress promising to help Indians—and then imposing rules that make lives harder for our most vulnerable citizens. It segregates children of Native ancestry from children of other races, denies them legal protections that apply to all other kids, and makes it harder for them to find permanency in homes with adoptive families eager to give them love and permanency. And it does all of this solely on the basis of…well, let’s be frank: the one drop rule.