Supreme Court Must Close the Chapter on Discrimination Against Native American Children

When Congress passed the Indian Child Welfare Act (ICWA) in 1978, it aimed to put an end to racist government policies whereby state and federal officials actively sought to take Native American children away from their parents and place them with white families. What Congress probably didn’t realize was that almost half a century later, ICWA would prove to be one of the major causes of the mistreatment of Native kids—and a deadly obstacle to those seeking to protect them from abuse and neglect. Now the Supreme Court is poised to address the constitutionality of this law, and the burdens it imposes on disadvantaged “Indian children.”

That phrase is in quotes because it’s where ICWA’s problems begin. Unlike other Indian laws, which apply either on reservation land or to members of tribes, ICWA applies to “Indian children” who do not live on tribal lands, and who may not be tribal members at all. Rather, it governs cases involving kids who are “eligible” for membership and have a “biological parent” who is a member. Every tribe sets its own eligibility rules, but they’re all based exclusively on biological ancestry, which means a child qualifies as “Indian” under ICWA even if she has no political or cultural connection to a tribe, has never visited tribal lands, and never joins a tribe.

In 2016, a 6-year-old California girl named Lexi was deemed “Indian” under ICWA even though her only connection to the tribe was that her great-great-great-great grandfather had been Choctaw. By contrast, a child who’s adopted by a tribal member, is fully acculturated to a tribe, speaks a tribal language, and practices a Native religion would not qualify—because she lacks the biologicalrequirements.

Simply put, ICWA applies based on biology, not tribal affiliation.

Read the rest of the op-ed at Attorney at Law Magazine.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute, which filed amicus briefs in the Lexi and Brackeen cases.