Providing Equal Protection Rights to Native American Children

This case in Texas involves a child called Y.J., who is of Navajo descent. When her parents proved unable to care for her, she and her siblings were put in foster care—including her brother, who was placed in the care of the B. family. Now the Bs want to adopt Y.J., and her mother wants that, too. But while that adoption would have been approved if Y.J. were of a different race, the rules are different for children like Y.J., whose biological ancestry makes them eligible for membership in an Indian tribe.

That’s thanks to the Indian Child Welfare Act (ICWA), a federal law that creates a separate set of rules for Native children—rules that are less protective than the rules that apply to kids of other races. For example, if a white or black or Asian or Hispanic child is being abused, state officials can step in to protect her by placing her in an approved foster home or terminating the rights of the abusive parents. But ICWA requires state officials to return abused Indian children to the parents who have abused them and prohibits termination of the rights of unfit parents unless the state can prove “beyond a reasonable doubt,” based on expert witness testimony, that the child will be harmed. That’s a stricter standard than applies even in criminal law cases.

As a result, ICWA makes it harder for states to protect these children or to find them the safe, loving homes they need. And ICWA also allows tribal governments to veto the decisions of parents who want to do what’s best for their kids. Thus, even though Y.J.’s mother wants the Bs to adopt her child, and a Texas trial judge agreed that that’s in Y.J.’s best interest, the tribal government has appealed that decision to the Texas Supreme Court—something that would never happen in a case involving a child of another race.

Tribal officials argue that the Supreme Court decision called Mancari allows the federal government to treat Indians different from non-Indians, notwithstanding the Constitution’s prohibition on race-based discrimination. But as we argue in our brief, Mancari applied to laws that differentiated between tribal members and non-members, whereas ICWA is triggered not by tribal membership, but by eligibility for membership—which is entirely based on ancestry. Thus, ICWA even applies to children who might never become members of a tribe and who may have no idea that they have Native ancestry. On the other hand, ICWA does not apply to children who are fully acculturated with a tribe, practice a Native religion, speak a Native language, and live on tribal lands—if they don’t fit the racial profile. ICWA is therefore race-based, not based on “political affiliation,” which is what Mancari was about.

Learn more about ICWA at our Equal Protection for Indian Children page.