How Insane Is the Indian Child Welfare Act? The Alaska Supreme Court Tells Us

We’ve been warning for years that the Indian Child Welfare Act (ICWA) reduces the legal protections given to Native American kids—putting them at greater risk of harm than kids of other races. And a recent decision from the Alaska Supreme Court offers a shocking example—one that endangers children and insults tribal culture in the process.

One of the most obvious ways ICWA harms kids is through its evidentiary requirements, which block state child welfare agencies and even parents themselves from rescuing at-risk Indian children from dangerous homes. For example, the state can terminate an abusive parent’s rights by providing “clear and convincing evidence” that the child is at risk. That’s the rule the Supreme Court adopted, noting that the relaxed “preponderance of the evidence” standard would make it too easy to take kids from their parents, and that the “beyond a reasonable doubt” rule would make it too hard—meaning that the state couldn’t protect kids from harm.

But ICWA requires that “reasonable doubt” rule, which is so high that states are often forced to send abused kids back to homes they know are abusive, often with fatal consequences—a requirement that does not apply to children who are white, black, Asian, Hispanic, or any other ethnicity. What’s more, ICWA also requires testimony from “expert witnesses,” and specifically, from witnesses who are experts in “tribal culture.”

The problem with that is made clear by the Alaska Supreme Court’s ruling in Nate G. v. State. That case concerned two parents who were arrested for driving under the influence with their 5-year-old son in the car. They admitted in court that they had substance abuse problems, and agreed to enter a treatment plan. But for years, they failed to cooperate with that plan, and the state finally decided no progress was being made. It sought to terminate the parents’ rights, and a trial was held that lasted eleven days. The trial judge finally ruled that their addiction and behavior posed a serious threat to the little boy’s safety.

But the higher court reversed that decision—not because the parents’ actions weren’t dangerous, but because the trial judge didn’t get testimony from a “cultural expert.” The judge, it said, should have received “cultural testimony” that would “help the [judge] ‘contextualize’ [the parents’] behavior.” The trial judge found that the child was at risk of abandonment, neglect, violence, and drug abuse—but that wasn’t enough, according to the state Supreme Court:

The [trial judge] cited [the social worker’s] testimony…“that [the children] do not have consistent contact with their parents, as this interferes with the parent/child bonding experience,” and her “quite emphatic” testimony that ‘domestic violence around children is problematic for their upbringing.” And it noted that “[p]art of her opinion was based on the incident that led to [the Office of Children’s Services] becoming involved — that is, when [Nate] was arrested for driving under the influence with the children in the car.” These are the kinds of conclusions best made with the benefit of cultural context, knowledge, and testimony.

If it seems bizarre to you that “cultural context” can make it somehow OK to drive drunk with your kids in the car, and to refuse to sober up after being given two years’ worth of sobriety treatment, the Alaska Supreme Court helpfully explains that “the relevance of cultural testimony is not limited to assessing the harm posed by a parent’s conduct; it is also relevant to assess whether tribal resources might mitigate the risk of harm to a child.”

Ah—so perhaps there is some reason to think the tribal government could help address the problem? Yet the court continues: “[the father] availed himself of some tribal resources; [the child]’s tribe initially worked with him and supervised visits. But that support ended and the tribe ultimately indicated that it did not believe [the child] was safe with [the father].”

So then what was the problem? Well, “the record does not, however, reflect whether other services were available or whether the tribe could have mitigated harm to [the child] in other ways.” And that means that the judge could not have ruled out the relevance of “cultural testimony”—which in turn means that the parents should retain custody of a child whom the state and the tribe view as being endangered.

This case is a prime example of how ICWA increases risks to Native American children and deprives them of the legal protections other children enjoy. Defenders of the status quo typically speak in generalities, claiming that ICWA somehow benefits Indian children—only to shy away from specific examples like this, of a child put in harm’s way by federal law, based solely on his biological ancestry. If this child had been of any other race, there’s no question his “best interests” would be the court’s primary concern, and that the dangerous and abusive behavior described in the opinion would warrant the termination of the parents’ rights. But because the child’s ancestors were of one particular race, those protections don’t apply.

The Nate G. decision also exemplifies another, more insidious problem with ICWA: the way it degrades the very idea of Native culture. In a separate opinion, one justice expressed puzzlement as to how “cultural testimony” could possibly be “relevant to evaluating the risk that [the father’s] substance abuse poses to his children.” He’s right—the very notion is not absurd. But it’s also subtly degrading to Native culture to imply that endangering one’s children through reckless behavior and alcohol addiction can somehow be excused, rationalized, or justified by reference to tribal cultural practices. That’s nonsense: no tribe considers such behaviors culturally acceptable—and the implication that they do is a prime example of the famous “soft bigotry of low expectations.”

ICWA doesn’t just strip vulnerable children of the legal guarantees afforded to other kids—it treats all Native Americans as second-class citizens whose culture doesn’t entitle them to equal protection under the law.

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