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What Should a Post-ICWA America Look Like?

November 18, 2022

The Supreme Court is poised to strike down parts of a race-based law that deprives Native American kids of legal protections others enjoy. Congress must be prepared to fix the Indian Child Welfare Act.

Will the Supreme Court finally put an end to a 40-year-old law that treats Native American children differently from—and worse than—kids of other races? We’re on the verge of finding out—and finding out how the rights of Native kids might change for the better going forward.

Last week, the justices heard four hours of legal arguments over the constitutionality of that law, known as the Indian Child Welfare Act (ICWA), which sets rules states must follow in cases involving the abuse, neglect, foster care or adoption of children of Native American ancestry. When enacted in 1978, ICWA aimed to protect Native Americans from legal abuses whereby states had tried, in the first half of the 20th century, to take Native children from their parents and force them to assimilate with white society. But as often happens, Congress went too far in the other direction. Today, ICWA strips Native children of the legal guarantees other children enjoy, restricts states’ ability to rescue them from harm and imposes race-based restrictions on adoption that make it practically impossible for these kids to find safe, loving, permanent homes when needed.

Last week’s legal arguments focused, of course, on ICWA’s egregious constitutional flaws, rather than questions of policy. By establishing a distinct set of rules for children of one particular race, ICWA violates the Constitution’s prohibition against laws that discriminate based on ancestry. And by compelling states to implement federal policies—policies that are less protective of children than those the states would prefer to implement—ICWA violates the “anti-commandeering” principle, which says states must obey, but cannot be forced to implement, federal laws. The example that appeared to trouble the justices most at last week’s hearing is ICWA’s “active efforts” requirement, which requires state agencies to help abusive parents in regaining custody over their children—and even compels states to return abused children to homes known to be dangerous, which has often resulted in the preventable murder of Indian children. No such requirement applies to children of other races.

Read the rest of the op-ed at Discourse Magazine.

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



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