The Goldwater Institute today asked the U.S. Supreme Court to take up a shocking case of discrimination involving two Minnesota children who were taken from the safe, loving foster home where they had lived for most of their young lives and sent hundreds of miles away to live on a reservation far from the medical care they need—all based on the color of their skin. It’s just the latest example of the injustices inflicted under the Indian Child Welfare Act (ICWA) and its Minnesota state version, known as MIFPA. Together, these laws impose a set of rules on child-welfare cases involving children who are biologically eligible for membership in an Indian tribe—rules that, amazingly, are less protective of Indian children than are the rules that apply to kids of other races.
The twins were born in 2022, suffering from severe medical distress because of their mother’s prenatal drug use. After spending more a month in the intensive care unit, the kids were placed in a foster home with the Reyelts family, who cared for them and took them to their many necessary medical treatments at the Mayo Clinic in Rochester. Had the children been white, black, Hispanic, Jewish, or anything other than Native American, they would likely have remained with the Reyelts, who took great care of them and hoped to become their forever family.
But the twins do have Native ancestry, which makes them eligible for membership in the Red Lake Nation. And that means they qualify as “Indian children” under ICWA and MIFPA—and that empowered tribal officials to take the children and place them instead on a reservation 300 miles away, with a cousin of their birth mother, even though the birth mother objected.
The reason is that ICWA and MIFPA require that children who might someday join an Indian tribe (based solely on biological factors) are required by federal and state law to be placed with “Indian” families—and the Reyeltses don’t qualify as “Indian.” Of course, what children like these twins need are caring and conscientious families—they don’t care about the color of someone’s skin. But federal and state law does care about that—in fact, race is all that ICWA and MIFPA care about. That’s why there have been so many horrific stories of the ways in which ICWA and MIFPA deprive “Indian children” of the legal protections provided to kids of other races. For example, under these laws,
- Children of abusive parents must be returned to the parents who have abused them—in many cases, resulting in the preventable murder of Indian children.
- State officials are required to return Indian children to sexually abusive caregivers, which would not be true of the children were of another race.
- “Indian children” cannot find safe, loving adoptive homes in non-Native families unless there’s proof “beyond a reasonable doubt,” based on expert witness testimony, that the children face imminent physical risk—a standard that’s even stricter than criminal law, meaning it’s easier to put a criminal on death row than to find an adoptive home for a Native American child.
- The procedural rules of cases involving “Indian children” are different, meaning, for example, that such cases must often go to tribal courts, where the Bill of Rights doesn’t apply.
The result of these and other rules in ICWA and MIFPA have already led the Supreme Court to acknowledge that the laws “raise equal protection concerns,” but so far the justices haven’t addressed those concerns.
Amazingly, when the Reyeltses sought to argue that ICWA and MIFPA are unconstitutionally discriminatory against Native kids, the Minnesota Supreme Court ruled that the very fact that they argued that made them unfit to care for the children. In other words, in violation of the First Amendment, the state’s high court ruled that because the Reyeltses believe the children should not be subjected to unequal treatment based on their race, the Reyeltses should not be allowed to participate in the case at all.
In our petition, we argue that not only are ICWA and MIFPA unconstitutionally race-based, but that barring the Reyeltses from the courtroom for daring to point that out is a violation of the basic due process to which everyone is entitled under our Constitution.
You can learn more about the many ways in which ICWA harms America’s most at-risk children here, and you can read our petition for certiorari here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
