A Matter of Life or Death: SCOTUS Should Strike Down ICWA’s Race-Based Burdens

The Supreme Court heard arguments Wednesday (Nov. 9) in a case that could spell life or death for countless Native American children whose fate is currently governed by the Indian Child Welfare Act (ICWA) – a federal law that strips them of the legal protections other children enjoy.

When it was adopted in 1978, ICWA was supposed to protect Native children, by halting practices whereby states purposely tried to remove them from their families and force them into assimilating with white society. But as often happens, Congress’ careless wording resulted in a law that actually harms the very children Congress set out to protect – and which violates several vital constitutional principles. It overrides the “best interest of the child” standard, forces state child welfare agencies to send Native kids to homes known to be abusive, and effectively forbids white, black, Asian, or Hispanic adults from adopting them.

Most shockingly, ICWA – unlike every other Indian law – doesn’t apply just to tribal members, or on tribal land. Rather, it applies to children who are merely “eligible” for membership, based exclusively on their ancestry, and it applies off reservation. This means a child can be deemed “Indian” under ICWA even if she has no cultural, social, or political connection to a tribe, and has no idea she has Native heritage. And it means that a child who is fully acculturated to a tribe is not deemed “Indian” under ICWA if she lacks the biological ancestry required for membership. That differentiates ICWA from the principle enunciated in Morton v. Mancari, 417 U.S. 535 (1974), which said Congress can treat tribal members differently from non-members because tribal membership is essentially a political, rather than a racial, distinction. Under ICWA, all that matters is biology.

Read the rest of the op-ed at the Daily Journal.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.