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How the Government Keeps 'Indian' Children From Loving Homes

March 3, 2022

The Supreme Court announced Monday that it would hear a lawsuit challenging the constitutionality of the Indian Child Welfare Act (ICWA), a 44-year-old federal law governing child welfare, foster care, and adoption for children who qualify as “Indian.” The case—which resulted in more than 300 pages of conflicting opinions in the lower court—began when a Native couple in Texas was unable to care for their child and agreed to have him adopted by a white family named the Brackeens. That triggered a legal showdown involving controversial aspects of the law: the ICWA treats “Indian children” differently than black, Asian, Hispanic, and other minority children, and it flouts longstanding principles of federalism by commanding state officials to enforce federal mandates.

To understand these controversies, consider the rules governing the termination of parental rights. Under the laws of every state, child welfare officers can sever an abusive parent’s rights if there’s “clear and convincing” evidence that the child is at risk. But the ICWA says that in cases involving “Indian children,” state officers must instead prove that risk “beyond a reasonable doubt” with the testimony of expert witnesses. That’s a stricter standard than applies even in criminal law, where expert witnesses aren’t required. By demanding more evidence of harm, the ICWA effectively requires that “Indian children” be more abused than kids of other races before officials can rescue them. And because termination of rights is usually necessary before a child can be adopted, this higher standard means it’s easier to put someone on death row than to find an adoptive home for an “Indian child.”

Read the rest of the op-ed at Reason.

Timothy Sandefur is Vice President for Litigation at the Goldwater Institute. 



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