Treat Children as Individuals, Not as Resources

In March, news-watchers were shocked by images of a six-year-old California girl named Lexi being snatched away from her foster parents and sent to live in Utah instead—not because she had been mistreated, but because officials with the Choctaw Tribe of Oklahoma preferred things that way. It didn’t matter that Lexi had lived with Rusty and Summer Page for four of her six years, called them “Mommy” and “Daddy,” and considered their other children her siblings. What mattered was that Lexi’s great-great-great-great grandparent was a full-blooded Choctaw Indian.

That meant she was subject to a federal law called the Indian Child Welfare Act (ICWA), which dictates the rules by which foster care, adoption, and other child-welfare proceedings are handled when a child has Native American ancestry. Astonishingly, those rules—which differ from the rules that apply to kids of all other races—harm Indian children by making it harder to rescue them from abusive families and to find them safe, loving, permanent homes. In effect, ICWA segregates American Indian kids, and implements a separate-but-equal—or, more accurately, separate and substandard—legal system—a system we at the Goldwater Institute call “the ICWA penalty box.”


ICWA’s Background

ICWA was passed with good intentions, in an effort to halt abusive federal policies that aimed at the forcible assimilation of American Indians. During the nineteenth century, the government outlawed native religions and helped establish boarding schools where Indian children were supposed to be taught trade, agriculture, and western culture—but where they were also exposed to physical and sexual abuse, and punished for speaking native languages or wearing native dress. A century later, officials were still removing Indian children from their homes and sending them to live with non-Indian families, often misperceiving traditional cultural practices as abuse.

ICWA sought to reverse these policies by giving tribal courts power to decide child custody cases involving tribal members on reservations, requiring state officials to understand and apply Indian cultural standards, and mandating procedures to ensure that birth parents are fully aware of their rights if they are asked to sign adoption papers.

But along with these laudable reforms, ICWA also declared Indian children to be “tribal resources,” and gave tribal governments extraordinary powers to control their lives. As the Supreme Court observed in 1989, the Act “recognizes that the tribe has an interest in the child which is distinct from, but on a parity with, the interest of the parents.” This means that even where Indian parents would prefer that ICWA’s rules not apply, their preferences can be overridden.

Even more disturbingly, ICWA does not apply only to members of tribes living on reservations. It applies to children anywhere in the country who are “eligible for membership” in a tribe and has a parent who is a member. It’s up to tribes to determine eligibility, but virtually all use blood quantum, rather than cultural affiliation. For example, members of the Navajo tribe must have 25% Navajo blood. The Cherokee require no specific percentage, but do require lineal descent from a signer of the 1907 Dawes Rolls. The Gila River Indian Community, meanwhile, requires 25% “Indian” blood, regardless of tribe. Federal regulations require state officials to enroll “eligible” children in tribes if they satisfy these pedigrees. The point is, ICWA applies only to children who meet these biological criteria, without regard for their cultural background. A child who is fully assimilated into the tribe but lacks the requisite pedigree—for example, Sam Houston, who was adopted at 16 by Cherokee Chief Oolooteka, or Linda Wishkob, the fictional character adopted into the Chippewa tribe in Louise Erdrich’s novel The Round House—is ineligible for membership, and therefore not subject to ICWA, whereas a child like Lexi, who has no cultural affiliation with any tribe, but is connected to it solely by genetics, is eligible, and is subject to the Act.

This point bears emphasis because laws that differentiate between people on the basis of race are generally held unconstitutional—but most laws that single out Indians for differential treatment are not considered race-based, thanks to the Supreme Court’s 1974 decision Morton v. Mancari. There the Court upheld a law giving hiring preferences to Indians because it was “not directed towards a ‘racial’ group consisting of ‘Indians,’” and was thus “political rather than racial in nature.” ICWA, by contrast, regards Indians as a racial group. It hinges not on cultural affiliation, but on ethnic ancestry.

In fact, some state courts have tried to interpret ICWA as applying only to children with cultural ties to a tribe, but those efforts have been severely criticized by tribal authorities, and the Bureau of Indian Affairs recently published regulations that reject that approach. Instead, the BIA demands that ICWA be applied to children who are even suspected of having Indian blood, until it is proven that they don’t.

If there were any doubt as to ICWA’s racial nature, it is erased by a provision in a different law: the Multi-ethnic Placement Act of 1994. It outlaws the denial or delay of an adoption as a consequence of a child’s race—but with one specific exception: children subject to ICWA. They are the only children in America against whom it is legal to discriminate on the basis of race.


The ICWA Penalty Box

When ICWA applies, it imposes a set of rules that don’t apply to children of any other race. Together, these rules override the “best interests of the child” standard that normally applies to child welfare cases, and that is generally considered the bedrock of child welfare law. But according to the BIA, it is not proper for courts to use the “best interests” rule for children of Indian ancestry, because it is presumed to be in an Indian child’s best interests to be placed with a tribe, or in accordance with tribal decrees.

The first element of the ICWA penalty box is jurisdiction. Child welfare is ordinarily a matter for state courts. But ICWA generally requires that such cases be transferred from state courts to tribal courts if the child is “eligible for membership.” Not only does this violate principles of federalism—under which family law is considered a quintessentially state-law matter—but it also violates the Constitution’s due process clause, which forbids courts from hearing cases involving people or events that have no connection with that court. The so-called “minimum contacts” rule forbids Florida or New York judges from deciding cases that involve car accidents in Oregon or murders in Mississippi. But when an abused or neglected child has Indian blood in her veins, tribal officials anywhere in the country can order her case sent to that tribe’s court regardless of whether any “minimum contacts” exist.

Second, ICWA forbids child welfare officials from terminating the rights of unfit or abusive parents unless they first make “active efforts” to reunite the Indian child with those parents. Termination is a drastic move, but it’s a necessary step toward finding neglected kids adoptive homes. Most states—and other federal laws—require officials to make “reasonable efforts” to reunify families prior to termination, and even this is not required in cases of abuse or other “aggravated circumstances.” But ICWA’s “active efforts” standard is more demanding, and it’s not excused by “aggravated circumstances” the way “reasonable efforts” can be. This means Indian kids must suffer worse abuse more consistently than kids of other races before they can be cleared for adoption.

Consider the case of Shayla H., a 12-year-old Nebraska girl taken from her birth father, David, after she was beaten and neglected. Because Shayla had Sioux ancestry, the Nebraska Supreme Court ordered her returned, on the grounds that child welfare workers had made only “reasonable,” not “active” efforts to reunite her with David. The ruling was heralded as a victory for Indian families. But in fact it was the opposite. By the time the decision was issued, Shayla had already been removed from David’s custody again after it was found that he had engaged in further acts of abuse and molestation against several kids, including Shayla’s younger sister. Shayla, the trial judge found, had “experienced [a] lifetime[] of trauma”—trauma that could have been avoided if the more limited “reasonable efforts” rule had applied to her case, as it does in cases involving white, black, Hispanic, or Asian kids.

The next part of the ICWA penalty box also makes it harder to protect Indian kids. The Act imposes higher evidentiary requirements when state officials try to find foster homes for Indian kids, or to terminate the rights of abusive parents.

Children of other races can be placed with foster families when courts find by the “preponderance of the evidence” that they’re at risk. But ICWA imposes a heavier burden: foster care must be justified by “clear and convincing evidence” instead.  As for terminating parental rights, ICWA requires proof “beyond a reasonable doubt,” based on testimony of witnesses who are experts in tribal culture, that the child is at risk of “serious damage.” That’s more evidence than is required to send someone to death row.

In the 1980s, the Supreme Court warned that such a heavy burden “would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.” And, indeed, that rule does mean that Indian kids must be more severely and obviously mistreated before child protection workers can rescue them. At a minimum, these rules delay protections for at-risk Indian children.

In a 1991 South Dakota case, a non-Indian mother with psychiatric problems and alcoholism volunteered her son for adoption, then withdrew the request, then requested it again, then changed her mind again. This happened twice more before the boy was placed in his grandmother’s care—but a few weeks later, she asked social services to take him away. Finally, when the child was a little more than two, the court terminated parental rights, finding that this was in the boy’s best interests.

But after that, paternity results arrived, and the father proved to be a member of the Cheyenne River Sioux tribe. The state Supreme Court therefore ordered another round of hearings under ICWA’s “beyond a reasonable doubt” rule—proceedings one justice called “pointless.”  Whether or not the court correctly interpreted ICWA, the case demonstrates how these different evidentiary requirements delay, and sometimes prevent, protections for children. As Christine Bakeis observes with classic understatement, “[s]uch a result is clearly not beneficial to children with Indian ancestry.”

And where do abused Indian children go? The final—and perhaps the worst—parts of the ICWA penalty box consist of a set of race-based preferences for foster and adoptive families.

When it comes to foster care, Indian children must be placed either with extended family—as defined by the tribe—or with foster homes approved by their tribes, or with “Indian foster homes,” or institutions approved by “an Indian tribe.” (These latter provisions make no reference to tribe; they’re based on generic “Indianness.” They mean children of, say, Eskimo heritage must be placed with Seminole foster families instead of with black or Hispanic families, no matter how caring and fit the latter might be.)

As for adoption, ICWA requires that children be placed with extended family members (chosen by tribal authorities), with tribal members, or with “other Indian families”—again, regardless of tribe—instead of families of Asian or African heritage. ICWA allows state courts to set aside these requirements when there’s “good cause,” but ICWA doesn’t define “good cause,” and, as mentioned above, the BIA and many courts forbid considering the child’s best interests when addressing “good cause.”

The separate-and-substandard treatment ICWA accords Indian children is a powerful deterrent to protecting them. As one expert notes, “for non-Indians who wish to adopt an Indian child, the risks are often considerably greater than in adoptions of other children.” Foster parents are discouraged from taking in Indian children, knowing they’ll likely be forbidden to adopt, and might be forced to watch the kids they love taken away and sent back to abusive situations. That problem is exacerbated by the dearth of ICWA-compliant foster families. Los Angeles County, for instance, with a population of 10 million, has only one Indian foster mother.


ICWA’s Confused Priorities

Because ICWA prioritizes race over a child’s best interests, it often sentences Indian kids to lives of abuse and neglect. Among the most shocking cases is that of Laurynn Whiteshield, a North Dakota girl born in 2010 and taken in by a foster family when she was nine months old. Nearly three years later, when her foster parents proposed adopting her, the Spirit Lake Sioux tribe activated its ICWA authority to take Laurynn and her twin sister Michaela away and send them to live with their grandfather on the reservation—despite the fact that his wife had a long criminal record for child neglect.

A month later, she threw Laurynn and Michaela off an embankment. Laurynn died from head trauma. Michaela was returned to her foster parents.

The Whiteshield case is extreme—though, alas, not that rare—but ICWA often blocks Indian kids from finding the stable and permanent homes they need. And because it’s triggered by a child’s ethnicity, it’s often used to obstruct, not protect, the formation of Indian families. One distressingly common occurrence is when the parents of an Indian child separate, and the mother remarries—whereupon the birth father, even if non-Indian, uses ICWA to block adoption by her new husband.

In one case now before the Washington Supreme Court, a child was born in 2007 to an Indian mother and non-Indian father. The father, a drug addict and domestic abuser, was convicted of several felonies, and by the time he was released from prison, the mother had met and married another man. The new couple asked a state judge to terminate the father’s parental rights so the step-father could adopt him. The tribe supported this move—but court disagreed. It found that child welfare officials had not made “active efforts” to reunite the boy with his birth father. It made no difference that the father was not Indian, because ICWA applies “without regard to a parent’s status.” In this, and many similar cases, ICWA obstructs what it’s supposed to promote: secure and healthy Indian families.

That’s not the only way ICWA overrides parental wishes. In the 1989 Holyfield case, Indian birth parents traveled 200 miles off the reservation to give birth, and voluntarily signed adoption papers with a couple they selected. The tribe nevertheless moved to have the adoption voided for non-compliance with ICWA. The Supreme Court agreed, concluding that ICWA “was not meant to be defeated by the actions of individual members,” because it protects “not solely … Indian children and families, but also … tribes themselves.” In a 2016 case, a Cherokee father tried to relinquish his tribal membership in order, he said, to “take the matter out of—out of the Tribe’s hands” and “help keep … [the child] where she’s at.” But the tribe intervened and defeated his efforts. As Indian law expert Matthew L. M. Fletcher concludes, ICWA’s purpose “is ultimately to maintain the survival of the tribe through the retention of its members”—not to protect children.


The Future of Indian Children

ICWA’s basic flaw lies its effort to combine two divergent goals: protecting Indian children—and boosting the power of tribal governments, often at the children’s expense. The consequences of this unstable compromise were made clear just weeks ago when the California Court of Appeal ruled in Lexi’s case that her best interest is only “one factor among several” that courts should consider. For children of other races, best interests would be the paramount consideration. But “[w]hen the best interests of an Indian child are being considered,” the California judges declared, courts should also consider her “connection to her cultural identity.”

This was a weak euphemism, of course, because Lexi has no cultural connection to the Choctaw tribe—only a biological one. What the court really meant is that while judges should protect a white or black child’s individual best interests, they shouldn’t do that for Indian kids. For them what matters is genetics.

Remarkably, some commentators argue that considering a child’s individual best interests is simply inappropriate, even a form of racism. Professor Michael Dale describes the best interests test as an “Anglo middle-class standard,” which is “decidedly different” from Indian values. “[T]he inclusion of the child’s ‘best interests’” in ICWA cases, writes Professor Annette Appell, “reveal[s] the tenacity of cultural hegemony.”  Probably the most extreme statement comes from Professor Christine Metteer. Quoting novelist Barbara Kingsolver, she argues that Indian children should only be adopted by Indian families in the way that “a baby elephant [ought to] be raised by elephants.”  

But dividing human beings along such bio-cultural lines—regarding Indians as a separate species that must be raised by “their own kind”—is repugnant to a constitutional order that strives to protect each person as an individual human being.

Relegating kids to separate legal categories on account of their ancestry is wrong. Nobody knew that better than Martin Luther King Jr., who warned that “the interrelatedness of all communities and states” makes it improper to “sit idly by” while our fellow citizens are subjected to unequal treatment due to their race. Though it is sometimes overlooked, all Indian children are citizens of the United States, entitled by our Constitution to a legal system that regards them as individuals with rights, rather than as “tribal resources” whose needs can be compromised to promote tribal autonomy. American Indian children deserve equal protection. When their welfare is at stake, no value should be treated as more important than their individual best interests.

Also from this issue

Lead Essay

  • Timothy Sandefur charges that the Indian Child Welfare Act renders children of Native American ancestry the only ones in the entire country against whom it is legal to racially discriminate. Not only that, but the racial discrimination at hand is being conducted by the government of the United States, and it often seriously harms the children involved. U.S. law typically attempts to realize the best interests of the child, but the ICWA abandons that standard. It declares that many genetically Native American children are “tribal resources,” even if they lack any cultural or emotional attachment to a tribe or its members. Sandefur documents several cases of serious abuse that have followed from this law and recommends reform.

Response Essays

  • Matthew L. M. Fletcher argues that the Indian Child Welfare Act has done a great deal of good by allowing Native Americans to preserve both their culture and their families. And this has not come at the cost of children’s well-being; numerous child welfare advocacy groups regard the ICWA as the “gold standard” for child welfare and even recommend that its provisions be extended to all children. Fletcher rebuts the charge that the ICWA was to blame for a recent, high-profile child custody dispute, and he laments that casual racism against Native Americans continues down to the present day.

  • Professor Kristen Carpenter explains the rationale for the ICWA and argues that it is not a piece of racial legislation. Rather, it respects the previously made determinations of the United States government about who is eligible for membership in Indian tribes, and it has proven in general to be an effective tool for opposing the forced assimilation policies that have done so much harm to Indian tribes’ culture in the past. Anecdotes of one case of child custody or another are unhelpful, she maintains, while the data shows that ICWA is generally working well, and that problems generally come from noncompliance or from other, unrelated factors.

  • Walter Olson agrees that the Indian Child Welfare Act is “an exceedingly bad law,” but he suggests that much of the rest of our child welfare system is flawed as well. The “best interests of the child” standard can lead to costly and exacting legal battles over just how good a particular parent may be. This is a nightmare for anyone, of course, but it hurts the poor the worst. Turning to the ICWA, Olson agrees that it commonly disregards individual rights and treats individuals as resources for a community with which they have no acutal affiliation. The ICWA puts tribes’ interests ahead of both those of children and parents, and it protects American Indian ethnicity while ignoring other ethnicities that a child may also have, and may even identify with more closely.