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Ensuring Justice for All: Understanding the ICWA Decision

October 5, 2018

by Timothy Sandefur
October 5, 2018

When Martin Luther King wrote that “Injustice anywhere is a threat to justice everywhere…. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds,” he spoke with that characteristic confidence of his that justice would, in the end, be done to all. Yesterday, a federal judge in Texas played an important part in realizing that dream when he ruled that the Indian Child Welfare Act (ICWA)—a federal law that creates a separate and less-protective set of rules for child welfare cases involving children of Native American ancestry—violates the Constitution.

ICWA’s segregated system applies to child abuse, foster care, or adoption cases involving “Indian children”—which it defines as children who are either tribal members or are “eligible” for membership and are also the biological children of tribal members. Different tribes have different rules, but all tribes base eligibility solely on genetics. That means a child who is, say, adopted by an Indian family and lives on a reservation, and speaks a Native language and practices a Native religion, would not qualify as “Indian”—whereas a child whose great, great, great, great grandparent was Cherokee would qualify, even if that child has never even visited a reservation, has no cultural affiliation with a tribe, and may not even know she’s “Indian.”

That’s important because the rules ICWA imposes on Indian children are far less protective than the rules that apply to non-Indians. ICWA imposes different evidentiary rules and other kinds of standards on Indian kids’ cases, making it harder for states to protect them against abuse or neglect, and making it prohibitively difficult to foster or adopt them. In fact, the law says that Indian children must be adopted by Indian adults regardless of tribe, rather than by white, or black, or Asian, or Hispanic parents. This is tragic because there are so few Indian foster or adoptive families. Indian kids—who are vastly over-represented in the foster population—are particularly in need of protection, and ICWA denies them that.

What’s more, ICWA bars state officials from taking steps to protect these kids—even though protecting children in need is the responsibility of states, not of the federal government. Remember: We’re not speaking of kids who live on reservations—ICWA doesn’t apply on reservations—but of kids who live in the same suburban neighborhoods as their white or black schoolmates. That means that by enacting ICWA, Congress overrode one of the most essential functions of state government: child welfare and adoption law.

That’s why the Texas, Indiana, Louisiana, and Ohio Attorneys General joined in the lawsuit brought by a group of families seeking to challenge ICWA’s constitutionality. And in yesterday’s ruling, the court found that ICWA goes beyond Congress’s limited powers to intrude on state authority. “ICWA offends the structure of the Constitution by overstepping the division of federal and state authority over Indian affairs,” wrote the judge, “by commanding States to impose federal standards in state created causes of action.” In other words, Congress can’t dictate the evidentiary standards or the rules of judicial procedure that apply in state courts. Nor can Congress compel state officials to implement a federal program. ICWA represents “a direct command from Congress to the states,” which longstanding precedent has held to be unconstitutional—even under the Commerce Clause, which gives Congress broad authority with regard to Indian tribes.

The court also found that ICWA gives tribal governments power to create new rules that states are forced to follow—which violates the “non-delegation” doctrine. That doctrine says Congress is not allowed to give its lawmaking power to someone else, least of all a separate, private entity that isn’t answerable in any way to federal authority. Because ICWA allows tribes to create rules for how ICWA operates, and then compels states to obey, it violates the Constitution. Also, the court found that the Bureau of Indian Affairs exceeded its authority by issuing regulations that are binding on state agents—for example, rules that set the evidentiary standards state courts are required to follow in ICWA cases. Federal agencies can’t do that.

Then, of course, there’s ICWA’s race-based discrimination. Defenders of the status quo have typically argued that ICWA doesn’t distinguish between people based on race, but based on tribal status, which is a political, not a racial, distinction—and Congress is freer to make political distinctions than racial ones. This argument is based on a Supreme Court decision called Mancari, which upheld hiring preferences at the Bureau of Indian Affairs, since those preferences went to tribal members. This wasn’t racial, the Court said, but a political difference.

But yesterday’s ruling rejects the Mancari argument. ICWA isn’t triggered by tribal membership, but by eligibility for membership, which is based purely on biology. And the adoption “preferences”—the rules that say Indian kids must be adopted by “Indian families”—doesn’t depend on tribe at all, meaning that a Sioux child has to be adopted by an Ojibwe family rather than by a white or black family. ICWA, the court said, is triggered by “generic ‘Indianness,’” rather than tribal affiliation. That means it’s race-based—and unconstitutional.

This is a major victory for Indian children and their families. ICWA doesn’t just make it harder to protect these kids from harm, but it often obstructs the rights of Indian parents themselves, who are often denied the right to do what they think best for their kids. And it’s a vindication of the principles of equal justice to which all American children are entitled. The day would come, wrote Martin Luther King in 1963, when people would realize that the “disinherited children” who protested segregation were “standing up for what is best in the American dream.” Yesterday’s decision in defense of these disinherited children vindicates their claim to their part of that dream.

Timothy Sandefur is the Vice President for Litigation at the Scharf-Norton Center for Constitutional Litigation. He litigates ICWA cases as part of the Goldwater Institute’s Equal Protection for Indian Children project.



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