This Isn’t the Way to Protect Families’ Rights

In the end, I agree with Timothy Sandefur that the Indian Child Welfare Act is an exceedingly bad law, for reasons I’ll get to in due course. But I’d rather start off with a couple of ways in which my perspective may differ from his, and even echo certain of Matthew Fletcher’s themes.

As libertarians, we shouldn’t want to make it too easy for the law or the state to snatch children from custodial parents. Its standard in doing so should ordinarily have to be significantly more demanding than just the child’s “best interests.” Way back in 1991 (I feel old), in my book The Litigation Explosion, I criticized the “best interests of the child” standard in the context of custody litigation between parents: it provided “hair-trigger litigability” against the rights of generally competent parents; depended too much on the subjective assessments of the judge, social workers, and experts on the scene; and was intrusive and expensive to litigate since every little fault and virtue of the parents might prove relevant and had to be inquired into.  

The horror of fighting a legal battle to save your kids is not much lessened when the battle is against not a former spouse but the state itself. If you are poor, good luck trying to mount the best defense of your parental competence with skilled lawyers and hired testimony from social workers, psychologists, or other experts. Your state adversary, on the other hand, will not lack for lawyers, social workers, and experts, and it is natural for a judge to find its experts credible.   

All of which tends to explain why, were the loss of our own parental rights at stake, most of us would want the standard to be something more on the lines of “likely…serious physical or emotional damage” to our child by remaining with us, rather than merely the furtherance of his or her best interests by moving into the home of some pleasant, well-qualified couple. We would want the cause adjudicated not under a mere preponderance-of-the-evidence standard, but under clear-and-convincing or some higher standard. We would want our state opponent to have to invest in various procedural and notice protections, like a high degree of formality should we waive our rights, and we would probably want legal presumptions that leaned toward grandparent or aunt/uncle care rather than assignment to strangers. Such presumptions and safe harbors should appeal to libertarians as speed bumps preventing the state from zooming into the domain of private family life. They should also appeal to more traditional conservatives in that they recognize that family is special: she may not be a great mom, but she’s your mom.

One more point before I start circling around to my areas of agreement: especially in this area, we need to be cautious with horror stories. Every policy choice in the child welfare area will generate some: there are horror stories about adoption and likewise about kids negligently left in birth families, horror stories about group home care and grandparent care. For child welfare officials, the incentive can be to react to one headline-making tragedy by veering into the opposite mistake. But the buffeting and vacillation can leave public agencies in the untenable middle zone of holding back kids from any definite final placement, not clearing them for adoption while also not trusting their parents, so that they bounce around for years among foster homes and failed attempts at family reunification. And yet that seems to be one of the surest ways to create horror stories. Let us have no illusions: family collapse leaves no zero-risk options, no ways of arranging matters that are sure to save the at-risk family members from further jeopardy.

Someday we might want to design a legal regime that minimizes state intrusion into families, limits the discretion of faraway bureaucrats, and empowers parents by clarifying their rights. But ICWA sure isn’t it. It’s a power play that’s meant to serve the interests of one governmental actor on the scene, the tribe. It regards children and parents as tribal resources to be conscripted, and it designates a vastly overbroad group of children to grab as “Indian children,” the better to maximize resource intake. Liberal foundations and child welfare agencies can apply all the spin they want to disguise that fact, but – given that those same groups bear much responsibility for the many failures of the wider, non-Indian child welfare system – I hope I am forgiven in discounting their opinion.

To read some of the cases Timothy Sandefur cites is to be shocked at how little individual rights count for in the ICWA scheme. Start with the Holyfield case, named by the late Antonin Scalia as the most troubling he had encountered in his many years on the Court, given its cruel clash between the dictates of the statutory language and the interests of the actual family before the court. Both birth mother and birth father wanted to escape the tribe’s jurisdiction in favor of an adoptive placement they saw as promising a better life for their child. Too bad: their infant was tribal property.

You might rationalize the Holyfield result on the grounds that by living on a reservation the parents had bowed to its jurisdiction. But then you run into the reality that ICWA binds the rights of parents who have not lived in “tribal relations” or on a reservation, and who have perhaps never set foot in Indian country. You discover In re the Adoption of T.A.W., a case from Washington where the parent with Indian ancestry wanted the tribe to stay out of it, to no avail. And the Oklahoma case where the Cherokee father sought to disenroll from tribal membership in vain.

Indian law more generally is erected on a series of ever-shifting fictions about what kind of sovereignty an Indian tribe might be –  a fully sovereign nation, like France or Japan? More like a state or territory or municipality? A paternalistic trust for an extended family?

Whichever fiction we go with, we must realize that ICWA makes no pretense to symmetry in rights as between either sovereignties or parents. The child of an Indian mother and Anglo father, living deep in Indian country, is tribal property. So is the child whose parentage is the other way round, born in downtown Boston. It may be that you, yourself, have spent every day of your life in Brooklyn, and the guy you met that night at the bar never mentioned (and perhaps only dimly remembered himself) some tribal enrollment out West when he was a kid based on his 1/64th heritage. You lose: your child is tribal property and you must submit to a tribal court to prepare for his “placement … in … homes [that] reflect the unique values of Indian culture,” even if his dad had no such interest or connection. And what of your own family’s side of your infant’s cultural inheritance, which might be Korean, or African-American, or Dominican, or Russian-Jewish, or Irish? The law cares not.  

Healthy polities do not need to build walls to prevent escape. Nor will walls serve to restore those polities to health.

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.