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The Color Line Is Hurting America’s Most At-Risk Children—and the Supreme Court Can Stop It

November 4, 2022

Much more than constitutional law will be on the line next week when the Supreme Court hears arguments in Brackeen v. Haaland, a case involving the constitutionality of the Indian Child Welfare Act (ICWA). That’s because the ICWA — a federal law that creates a unique set of rules for child-welfare or adoption cases involving Native-American kids — actually makes it harder for states to protect these children from harm and virtually impossible to find them adoptive homes when needed.

Although it was passed with good intentions — to halt practices whereby states actively tried to take children away from Native parents as part of a program of coercive “assimilation” — the ICWA today unfortunately harms the very children it was supposed to help. Native children are at greater risk of everything from physical beating to gang membership to suicide than any other demographic in the United States. Yet the ICWA strips them of the legal protections that kids of all other races enjoy, and elevates racial and political considerations over their best interests.

The ICWA’s unconstitutionality starts with its definition of “Indian child.” Unlike all other Indian laws, which apply to residents of tribal lands or to tribal members, the ICWA applies outside of tribal lands, and to kids who are only “eligible” for tribal membership — even if they never become tribe members. Every tribe has different eligibility rules, but all are predicated exclusively on biological ancestry. That means that even children with no cultural, political, or social connection to a tribe — who speak no tribal language, don’t practice a Native religion, and have never visited a reservation — are deemed “Indian” under the ICWA, whereas children who are fully acculturated with a tribe are not, if they lack the biological pedigree necessary for tribal membership. Thus, in 2016, a six-year-old California girl named Lexi was deemed “Indian” and subjected to the ICWA, even though her only connection to the Choctaw tribe was that her great-great-great-great grandparent was Choctaw. On the other hand, someone like Linda Wishkob (the fictional white girl raised by an Ojibwe family in Louise Erdrich’s novel The Round House) or the real-life William Holland Thomas (a white man who became a Cherokee chief in the 19th century) would not qualify as Indian under the ICWA, solely because of the blood not in their veins.

Read the rest of the op-ed at National Review.

Timothy Sandefur is the Executive Vice President of the Goldwater Institute.



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