November 7, 2019
By Timothy Sandefur
The Fifth Circuit Court of Appeals announced in an order today that it will reconsider its decision from this summer in a Texas case that upheld the constitutionality of the Indian Child Welfare Act (ICWA). This is a good sign—good for Indian children, that is, who suffer under ICWA’s reduced protections against abuse and neglect. It’s also good for the families who love these children and whose rights to defend their kids’ welfare are often cut off by ICWA’s racially discriminatory provisions.
And yes, it’s about race. ICWA applies to children who are “eligible” for tribal membership—and eligibility is determined solely on the basis of genetic ancestry. A child who’s raised by tribal parents, who speaks a Native language and practices a Native religion would not qualify as an Indian child under ICWA if he fails the genetic test—whereas a child who has no idea she’s of Native ancestry, does not speak a Native language, and has never even visited tribal lands would qualify, simply because of her biological ancestry. And ICWA applies not to children on reservations—on the contrary, it does not apply there—but to children who live off reservations, in every town and city across the country, who happen to fit ICWA’s racial profile.
Although often misrepresented as a benefit to Native children, ICWA actually harms these kids in several ways:
Tribal governments typically wave away these concerns, either by saying that they’re based on mere “anecdotes” (when in fact we’re talking about binding decisions from the highest courts of several states), or by pointing to abuses in the past in which Native kids were unjustly taken from their parents by child welfare agencies that abused their authority with sometimes tragic results. Those abuses were real enough, but they have nothing to do with the Texas lawsuit, in which a Native couple agreed to the adoption of their child—or the many other problems caused by ICWA. That Act was written with good intentions. But today it ends up harming America’s most at-risk demographic—Native American kids—and the adults who love them.
To learn more, check out our page on the Indian Child Welfare Act here.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.
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