Protecting Native American Children’s Rights in Minnesota

The Indian Child Welfare Act (ICWA) is a federal law that imposes a separate set of rules on lawsuits involving the welfare of at-risk Native American children—rules that are less protective of the children than the rules that apply to children of other races. Scandalous as that is, some states have even worse laws. One of those is Minnesota, where a state version of ICWA, called MIFPA (the Minnesota Indian Family Preservation Act) sets out even worse rules: rules that make it harder for the state to protect abused and neglected children from harm, if they have Native American blood in their veins.

Under ICWA and MIFPA, a child who’s “eligible for membership in an Indian tribe” can virtually never be adopted by adults who are white, black, Asian, Hispanic, or members of any other race. Instead, they must be adopted by “Indians”—a category that’s defined entirely by biological ancestry, not by cultural or social connections to a tribe. The laws also change the evidentiary rules so that an “Indian child” must be more abused and for longer than a child of any other race before the state can try to intervene. These laws do notapply on reservations—only off reservations—and they enable tribal politicians to order children taken from safe, loving foster homes and sent to live elsewhere, regardless of the child’s best interests.

In fact, Minnesota law establishes two separate best-interest standards. For non-“Indian” kids, “best interest” means what’s best for that specific child in his or her unique circumstances. But MIFPA says that for “Indian” children, “best interest” effectively means what’s best for the tribe.

The problems with these discriminatory rules is shamefully illustrated by this case, which involves twins—a boy we’ll call Karl and a girl we’ll call Kara—who were born to a mother who used drugs while pregnant. They suffered severe consequences—in fact, Kara was born dead, and was revived through the heroic efforts of doctors. Both babies suffered terrible withdrawal symptoms and needed lengthy treatment at Minnesota’s world-famous Mayo Clinic, as well as regular therapy afterwards.

Fortunately, they were placed in the loving care of a foster family who lived near the Mayo Clinic and could get them the treatment they need. For well over a year, they cared for the babies, ensuring that they could have a chance at a happy and healthy future.

Unfortunately, Karl and Kara are “eligible for membership in an Indian tribe.” And that meant that tribal officials, using their powers under ICWA and MIFPA, demanded that the children be taken away and sent to live on the reservation, instead, far from the medical treatment they need, and with a relative whom even their birth mother considered unfit.

Representing the foster parents, American Freedom Network member Mark Fiddler filed a lawsuit to halt that change of custody. Unfortunately, the trial judge ruled against them. But an appellate court held that they did have the right to intervene in the lawsuit, and to argue that ICWA and MIFPA violate the U.S. Constitution’s prohibitions on racial discrimination. Now the case has been taken up by the Minnesota Supreme Court.