In March, news-watchers were shocked by images of a six-year-old California girl named Lexi being snatched away from her foster parents and sent to live in Utah instead—not because she had been mistreated, but because officials with the Choctaw Tribe of Oklahoma preferred things that way. It didn’t matter that Lexi had lived with Rusty and Summer Page for four of her six years, called them “Mommy” and “Daddy,” and considered their other children her siblings. What mattered was that Lexi’s great-great-great-great grandparent was a full-blooded Choctaw Indian.

That meant she was subject to a federal law called the Indian Child Welfare Act (ICWA), which dictates the rules by which foster care, adoption, and other child-welfare proceedings are handled when a child has Native American ancestry. Astonishingly, those rules—which differ from the rules that apply to kids of all other races—harm Indian children by making it harder to rescue them from abusive families and to find them safe, loving, permanent homes. In effect, ICWA segregates American Indian kids, and implements a separate-but-equal—or, more accurately, separate and substandard—legal system—a system we at the Goldwater Institute call “the ICWA penalty box.”

 

ICWA’s Background

ICWA was passed with good intentions, in an effort to halt abusive federal policies that aimed at the forcible assimilation of American Indians. During the nineteenth century, the government outlawed native religions and helped establish boarding schools where Indian children were supposed to be taught trade, agriculture, and western culture—but where they were also exposed to physical and sexual abuse, and punished for speaking native languages or wearing native dress. A century later, officials were still removing Indian children from their homes and sending them to live with non-Indian families, often misperceiving traditional cultural practices as abuse.

ICWA sought to reverse these policies by giving tribal courts power to decide child custody cases involving tribal members on reservations, requiring state officials to understand and apply Indian cultural standards, and mandating procedures to ensure that birth parents are fully aware of their rights if they are asked to sign adoption papers.

But along with these laudable reforms, ICWA also declared Indian children to be “tribal resources,” and gave tribal governments extraordinary powers to control their lives. As the Supreme Court observed in 1989, the Act “recognizes that the tribe has an interest in the child which is distinct from, but on a parity with, the interest of the parents.” This means that even where Indian parents would prefer that ICWA’s rules not apply, their preferences can be overridden.

Even more disturbingly, ICWA does not apply only to members of tribes living on reservations. It applies to children anywhere in the country who are “eligible for membership” in a tribe and has a parent who is a member. It’s up to tribes to determine eligibility, but virtually all use blood quantum, rather than cultural affiliation. For example, members of the Navajo tribe must have 25% Navajo blood. The Cherokee require no specific percentage, but do require lineal descent from a signer of the 1907 Dawes Rolls. The Gila River Indian Community, meanwhile, requires 25% “Indian” blood, regardless of tribe. Federal regulations require state officials to enroll “eligible” children in tribes if they satisfy these pedigrees. The point is, ICWA applies only to children who meet these biological criteria, without regard for their cultural background. A child who is fully assimilated into the tribe but lacks the requisite pedigree—for example, Sam Houston, who was adopted at 16 by Cherokee Chief Oolooteka, or Linda Wishkob, the fictional character adopted into the Chippewa tribe in Louise Erdrich’s novel The Round House—is ineligible for membership, and therefore not subject to ICWA, whereas a child like Lexi, who has no cultural affiliation with any tribe, but is connected to it solely by genetics, is eligible, and is subject to the Act.

This point bears emphasis because laws that differentiate between people on the basis of race are generally held unconstitutional—but most laws that single out Indians for differential treatment are not considered race-based, thanks to the Supreme Court’s 1974 decision Morton v. Mancari. There the Court upheld a law giving hiring preferences to Indians because it was “not directed towards a ‘racial’ group consisting of ‘Indians,’” and was thus “political rather than racial in nature.” ICWA, by contrast, regards Indians as a racial group. It hinges not on cultural affiliation, but on ethnic ancestry.

In fact, some state courts have tried to interpret ICWA as applying only to children with cultural ties to a tribe, but those efforts have been severely criticized by tribal authorities, and the Bureau of Indian Affairs recently published regulations that reject that approach. Instead, the BIA demands that ICWA be applied to children who are even suspected of having Indian blood, until it is proven that they don’t.

If there were any doubt as to ICWA’s racial nature, it is erased by a provision in a different law: the Multi-ethnic Placement Act of 1994. It outlaws the denial or delay of an adoption as a consequence of a child’s race—but with one specific exception: children subject to ICWA. They are the only children in America against whom it is legal to discriminate on the basis of race.

 

The ICWA Penalty Box

When ICWA applies, it imposes a set of rules that don’t apply to children of any other race. Together, these rules override the “best interests of the child” standard that normally applies to child welfare cases, and that is generally considered the bedrock of child welfare law. But according to the BIA, it is not proper for courts to use the “best interests” rule for children of Indian ancestry, because it is presumed to be in an Indian child’s best interests to be placed with a tribe, or in accordance with tribal decrees.

The first element of the ICWA penalty box is jurisdiction. Child welfare is ordinarily a matter for state courts. But ICWA generally requires that such cases be transferred from state courts to tribal courts if the child is “eligible for membership.” Not only does this violate principles of federalism—under which family law is considered a quintessentially state-law matter—but it also violates the Constitution’s due process clause, which forbids courts from hearing cases involving people or events that have no connection with that court. The so-called “minimum contacts” rule forbids Florida or New York judges from deciding cases that involve car accidents in Oregon or murders in Mississippi. But when an abused or neglected child has Indian blood in her veins, tribal officials anywhere in the country can order her case sent to that tribe’s court regardless of whether any “minimum contacts” exist.

Second, ICWA forbids child welfare officials from terminating the rights of unfit or abusive parents unless they first make “active efforts” to reunite the Indian child with those parents. Termination is a drastic move, but it’s a necessary step toward finding neglected kids adoptive homes. Most states—and other federal laws—require officials to make “reasonable efforts” to reunify families prior to termination, and even this is not required in cases of abuse or other “aggravated circumstances.” But ICWA’s “active efforts” standard is more demanding, and it’s not excused by “aggravated circumstances” the way “reasonable efforts” can be. This means Indian kids must suffer worse abuse more consistently than kids of other races before they can be cleared for adoption.

Consider the case of Shayla H., a 12-year-old Nebraska girl taken from her birth father, David, after she was beaten and neglected. Because Shayla had Sioux ancestry, the Nebraska Supreme Court ordered her returned, on the grounds that child welfare workers had made only “reasonable,” not “active” efforts to reunite her with David. The ruling was heralded as a victory for Indian families. But in fact it was the opposite. By the time the decision was issued, Shayla had already been removed from David’s custody again after it was found that he had engaged in further acts of abuse and molestation against several kids, including Shayla’s younger sister. Shayla, the trial judge found, had “experienced [a] lifetime[] of trauma”—trauma that could have been avoided if the more limited “reasonable efforts” rule had applied to her case, as it does in cases involving white, black, Hispanic, or Asian kids.

The next part of the ICWA penalty box also makes it harder to protect Indian kids. The Act imposes higher evidentiary requirements when state officials try to find foster homes for Indian kids, or to terminate the rights of abusive parents.

Children of other races can be placed with foster families when courts find by the “preponderance of the evidence” that they’re at risk. But ICWA imposes a heavier burden: foster care must be justified by “clear and convincing evidence” instead.  As for terminating parental rights, ICWA requires proof “beyond a reasonable doubt,” based on testimony of witnesses who are experts in tribal culture, that the child is at risk of “serious damage.” That’s more evidence than is required to send someone to death row.

In the 1980s, the Supreme Court warned that such a heavy burden “would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.” And, indeed, that rule does mean that Indian kids must be more severely and obviously mistreated before child protection workers can rescue them. At a minimum, these rules delay protections for at-risk Indian children.

In a 1991 South Dakota case, a non-Indian mother with psychiatric problems and alcoholism volunteered her son for adoption, then withdrew the request, then requested it again, then changed her mind again. This happened twice more before the boy was placed in his grandmother’s care—but a few weeks later, she asked social services to take him away. Finally, when the child was a little more than two, the court terminated parental rights, finding that this was in the boy’s best interests.

But after that, paternity results arrived, and the father proved to be a member of the Cheyenne River Sioux tribe. The state Supreme Court therefore ordered another round of hearings under ICWA’s “beyond a reasonable doubt” rule—proceedings one justice called “pointless.”  Whether or not the court correctly interpreted ICWA, the case demonstrates how these different evidentiary requirements delay, and sometimes prevent, protections for children. As Christine Bakeis observes with classic understatement, “[s]uch a result is clearly not beneficial to children with Indian ancestry.”

And where do abused Indian children go? The final—and perhaps the worst—parts of the ICWA penalty box consist of a set of race-based preferences for foster and adoptive families.

When it comes to foster care, Indian children must be placed either with extended family—as defined by the tribe—or with foster homes approved by their tribes, or with “Indian foster homes,” or institutions approved by “an Indian tribe.” (These latter provisions make no reference to tribe; they’re based on generic “Indianness.” They mean children of, say, Eskimo heritage must be placed with Seminole foster families instead of with black or Hispanic families, no matter how caring and fit the latter might be.)

As for adoption, ICWA requires that children be placed with extended family members (chosen by tribal authorities), with tribal members, or with “other Indian families”—again, regardless of tribe—instead of families of Asian or African heritage. ICWA allows state courts to set aside these requirements when there’s “good cause,” but ICWA doesn’t define “good cause,” and, as mentioned above, the BIA and many courts forbid considering the child’s best interests when addressing “good cause.”

The separate-and-substandard treatment ICWA accords Indian children is a powerful deterrent to protecting them. As one expert notes, “for non-Indians who wish to adopt an Indian child, the risks are often considerably greater than in adoptions of other children.” Foster parents are discouraged from taking in Indian children, knowing they’ll likely be forbidden to adopt, and might be forced to watch the kids they love taken away and sent back to abusive situations. That problem is exacerbated by the dearth of ICWA-compliant foster families. Los Angeles County, for instance, with a population of 10 million, has only one Indian foster mother.

 

ICWA’s Confused Priorities

Because ICWA prioritizes race over a child’s best interests, it often sentences Indian kids to lives of abuse and neglect. Among the most shocking cases is that of Laurynn Whiteshield, a North Dakota girl born in 2010 and taken in by a foster family when she was nine months old. Nearly three years later, when her foster parents proposed adopting her, the Spirit Lake Sioux tribe activated its ICWA authority to take Laurynn and her twin sister Michaela away and send them to live with their grandfather on the reservation—despite the fact that his wife had a long criminal record for child neglect.

A month later, she threw Laurynn and Michaela off an embankment. Laurynn died from head trauma. Michaela was returned to her foster parents.

The Whiteshield case is extreme—though, alas, not that rare—but ICWA often blocks Indian kids from finding the stable and permanent homes they need. And because it’s triggered by a child’s ethnicity, it’s often used to obstruct, not protect, the formation of Indian families. One distressingly common occurrence is when the parents of an Indian child separate, and the mother remarries—whereupon the birth father, even if non-Indian, uses ICWA to block adoption by her new husband.

In one case now before the Washington Supreme Court, a child was born in 2007 to an Indian mother and non-Indian father. The father, a drug addict and domestic abuser, was convicted of several felonies, and by the time he was released from prison, the mother had met and married another man. The new couple asked a state judge to terminate the father’s parental rights so the step-father could adopt him. The tribe supported this move—but court disagreed. It found that child welfare officials had not made “active efforts” to reunite the boy with his birth father. It made no difference that the father was not Indian, because ICWA applies “without regard to a parent’s status.” In this, and many similar cases, ICWA obstructs what it’s supposed to promote: secure and healthy Indian families.

That’s not the only way ICWA overrides parental wishes. In the 1989 Holyfield case, Indian birth parents traveled 200 miles off the reservation to give birth, and voluntarily signed adoption papers with a couple they selected. The tribe nevertheless moved to have the adoption voided for non-compliance with ICWA. The Supreme Court agreed, concluding that ICWA “was not meant to be defeated by the actions of individual members,” because it protects “not solely … Indian children and families, but also … tribes themselves.” In a 2016 case, a Cherokee father tried to relinquish his tribal membership in order, he said, to “take the matter out of—out of the Tribe’s hands” and “help keep … [the child] where she’s at.” But the tribe intervened and defeated his efforts. As Indian law expert Matthew L. M. Fletcher concludes, ICWA’s purpose “is ultimately to maintain the survival of the tribe through the retention of its members”—not to protect children.

           

The Future of Indian Children

ICWA’s basic flaw lies its effort to combine two divergent goals: protecting Indian children—and boosting the power of tribal governments, often at the children’s expense. The consequences of this unstable compromise were made clear just weeks ago when the California Court of Appeal ruled in Lexi’s case that her best interest is only “one factor among several” that courts should consider. For children of other races, best interests would be the paramount consideration. But “[w]hen the best interests of an Indian child are being considered,” the California judges declared, courts should also consider her “connection to her cultural identity.”

This was a weak euphemism, of course, because Lexi has no cultural connection to the Choctaw tribe—only a biological one. What the court really meant is that while judges should protect a white or black child’s individual best interests, they shouldn’t do that for Indian kids. For them what matters is genetics.

Remarkably, some commentators argue that considering a child’s individual best interests is simply inappropriate, even a form of racism. Professor Michael Dale describes the best interests test as an “Anglo middle-class standard,” which is “decidedly different” from Indian values. “[T]he inclusion of the child’s ‘best interests’” in ICWA cases, writes Professor Annette Appell, “reveal[s] the tenacity of cultural hegemony.”  Probably the most extreme statement comes from Professor Christine Metteer. Quoting novelist Barbara Kingsolver, she argues that Indian children should only be adopted by Indian families in the way that “a baby elephant [ought to] be raised by elephants.”  

But dividing human beings along such bio-cultural lines—regarding Indians as a separate species that must be raised by “their own kind”—is repugnant to a constitutional order that strives to protect each person as an individual human being.

Relegating kids to separate legal categories on account of their ancestry is wrong. Nobody knew that better than Martin Luther King Jr., who warned that “the interrelatedness of all communities and states” makes it improper to “sit idly by” while our fellow citizens are subjected to unequal treatment due to their race. Though it is sometimes overlooked, all Indian children are citizens of the United States, entitled by our Constitution to a legal system that regards them as individuals with rights, rather than as “tribal resources” whose needs can be compromised to promote tribal autonomy. American Indian children deserve equal protection. When their welfare is at stake, no value should be treated as more important than their individual best interests.

The Indian Child Welfare Act (ICWA) restricts government intervention in Indian families’ lives, imposes important obligations on the government that benefit both children and parents when it does interfere, and limits the ease by which private entities profit from government action.

 

Penalizing Indian Parents for Being Indian

Imagine the terror of losing your children in a legal proceeding lasting one minute in which you had no opportunity to speak. In Rapid City, South Dakota, state courts routinely approve the “emergency” taking of American Indian children from their homes, based solely on a state worker’s affidavit, for months. This happens before the parents can secure a lawyer or review the evidence. They have no right to participate in the hearing. Once the child is under the control of the state, state workers can and do dictate terms to Indian parents, often making those parents choose between their culture and their children, or imposing impossible burdens on the parents. This all happens before the state has even proven its claims. Yet this is a common occurrence for Indian families throughout Indian country, not just South Dakota. Under these conditions, it follows that Indian children are disproportionately represented in foster care nationwide. Rapid City’s rules hearken back to an earlier era when many state agencies defined simply living in Indian country as harmful to children. ICWA is designed to end that kind of race discrimination, slow state processes down and, hopefully, establish a system to protect Indian children and Indian families.

Absent ICWA, Indian parents are penalized for being Indian. Consider Indian parents alleged to be addicts. An Indian parent might seek help from the tribal community to combat addiction in a traditional way. But state workers mandate instead that the parent attend meetings with strangers and impose punitive, zero tolerance, random drug tests during a time of intense vulnerability, invasive tests that directly conflict with the parent’s cultural beliefs. Indian parents that do not obey will not see their children. Parents must make a choice between their culture and their children, a penalty only Indians must face.

ICWA requires state workers to actively provide culturally sensitive services that reduce the price Indians must pay for being Indians, services often available through the family’s tribe. Tribes offer culturally relevant services for children, too. The Attorney General’s Advisory Committee on American Indian/Alaska Native Children Exposed to Violence concluded that compliance with ICWA would surely reduce the number of Indian children in foster care and the number of court orders terminating parental rights. ICWA slows down the state court Indian child welfare machine, irritating judges and advocates. And so compliance is uncommon.

 

ICWA as Gold Standard in Child Welfare

Given that Casey Family Programs, the Children’s Defense Fund, the Child Welfare League of America, and 15 other child welfare advocacy groups argue that ICWA is the gold standard in child welfare, one that should substantially apply to all children and their families, Mr. Sandefur’s “penalty” claim is an odd one. The assertion that ICWA slows down the response to child abuse by introducing Indian tribes into the equation is simply false; child abuse scandals happen in state government more. Indian tribes have the same incentive as any government to stop child abuse and, more and more frequently, have the capability to offer important services to victims. Per capita, even the poorest Indian tribes expend far greater resources on providing services to Indian children in need than notoriously underfunded state programs. Tribal services often are all that Indian families can rely upon, given that state child welfare systems in 19 states and in virtually all urban areas are broken.

Stripping tribal services from Indian children and parents is no solution. The “penalty” claim is an attack on ICWA’s due process requirements, and yet this due process is what makes ICWA the gold standard that all parents should enjoy. Due process violations are already rampant in the system. Why make them worse? I am in agreement with Mr. Sandefur that denying ICWA’s procedural protections to non-tribal members is wrong – something like ICWA’s protections should apply meaningfully to all.

 

Follow the Money

Not much remains of Mr. Sandefur’s “penalty” claim except that ICWA makes it harder for private adoption agencies to tap into a pool of potential Indian adoptees for the benefit of their paying clients. Who benefits if ICWA tumbles? As usual, the answer can be found by following the money. Start with the beneficiaries of the $14 billion private adoption market. The adoption industry long has been a foe of ICWA. Conversely, Indian tribes do not profit from the termination of parents’ rights.

ICWA requires the state to seek an Indian family to adopt where possible, but private adoption agencies don’t get paid unless an adoption with a paying family goes through. In both direct placement adoptions and adoptions following failed reunifications with parents, money works against reunification with families and ICWA compliance. Some foster parents are encouraged by private agencies to become foster-to-adopt parents, altering the goal of foster care from reunification to termination for adoption. And being told they will be able to adopt their Indian foster children just as soon as the parents’ rights are terminated creates an adversarial relationship – not one that encourages the stated goal of reunification. In addition, fees charged by private and religious adoption agencies taint direct placement adoption petitions. Adoptive families are good people, but they come from an overwhelmingly non-Indian pool of potential parents. Questions on race are endemic in adoption circles.

Perhaps because of these financial incentives, private adoption agencies have engaged in ethically corrupt practices to avoid or attack ICWA, even where the courts enforced the law. Adoption counsel in Adoptive Couple v. Baby Girl is alleged to have initially misspelled the Cherokee father’s name and incorrectly stated his birthday to prevent the Cherokee Nation from discovering that Baby V. was Indian. And later, counsel violated the Indian father’s privacy rights by advising the family to appear on television to advocate against ICWA. Throughout, the adoptive family benefitted from the media’s misstatements of critical facts that effectively turned public opinion against the biological father, an active duty military serviceman who was perfectly capable of caring for his daughter.

 

In re Alexandria P.: Lexi’s Case

Mr. Sandefur leads his article with a description of the video the foster parents created in the Alexandria P. case when the foster child was transferred to her family. Rather than do the transfer in private, with coordination between the foster parents, family, and state agency, the foster parents violated the child’s right to privacy by creating and distributing a video designed to drum up racial animus, even rage, against Indian families and Indian tribes.

Alexandria P. is a story of how foster parents created an adversarial relationship with a child’s family, disregarding the goal of reunification, and then created a perfect storm of anti-Indian media sentiment when they lost. Some facts should be made clear, in case they are not: Lexi knew and regularly visited her Utah family – her sisters and her aunt and uncle – and she always knew she was a foster child. From the beginning, the California foster couple was the only party to contest Lexi’s placement with her relatives. The state of California, the Choctaw Nation, her relatives, her father, and Lexi’s own counsel all agreed that the placement with her relatives was absolutely in her best interest. Not once did any court disagree.

ICWA was not to blame for the scene that people saw on the video. Rather, two things held up Lexi’s placement for years: first, the repeated failures of the trial court to apply the correct legal standard, and second, a California doctrine called “de facto parent” status that grants foster parents unique standing rights. After an emergency removal of an Indian child, that child might be placed in a non-ICWA compliant placement to keep the child close to her parents for reunification – which is, after all, the goal of foster care. If the reunification process fails, which usually takes at least a year, ICWA (and the laws of 45 states) mandates that the child’s permanent placement be with relatives. Once California foster parents decide they know best for the child and are granted de facto parent status, they can fight the placement and further delay the return of the Indian child to relatives. This is what happened in Alexandria P.

Lexi’s aunt and uncle in Utah expressed interest in adopting her when the state first removed her in December 2011, which triggered concurrent permanency planning between the California foster parents and the Utah relatives. They visited Lexi monthly in anticipation of her return if reunification with her father failed. When reunification did fail, the trial court in December 2013 ordered her to be placed with her Utah relatives in accordance with the wishes of every party except the foster parents. They appealed, forcing a delay in the placement. The California appellate court in August 2014 held that the trial court applied the incorrect standard, and it remanded. The trial court in November 2015 again held in favor of the placement with the Utah relatives, and again the foster parents appealed. Lamenting the long delay, the appellate court still vacated the trial court’s placement order for again failing to apply the correct standard. In March 2016, the trial court again held in favor of the Utah relatives, and for a third time the foster parents appealed. This time the appellate court did not stop the transfer, and so the foster family condemned ICWA and publicized the transition to generate national attention, grossly violating Lexi’s right to privacy. In July 2016, the California Court of Appeals strongly affirmed the placement order in favor of the Utah relatives. Had the foster family respected the goal of reunification in the first instance, this would not have become a news item. Somehow Mr. Sandefur suggests the foster family should prevail anyway and that this unusual saga makes the case for undoing ICWA.

Casual racism against American Indians is alive and well. In this hostile racial climate, it shouldn’t be surprising that Indian parents in South Dakota argue that “there’s this collective belief that Native people can’t take care of their own children.” The critique that ICWA improperly routes Indian children to their relatives’ homes instead of non-Indian homes is a critique that takes advantage of racial animus against Indian people and comes dangerously close to an allegation that Indian parents and tribal communities are inherently inferior (others have outright denounced the Goldwater Institute’s goals for this reason). Indian people love their children the same as everyone else. ICWA, the gold standard in child welfare, is there to support Indian families against governments that too often devalue them.

On August 31, 2013, a little girl clad in a purple shawl, holding the hands of her father and stepmother, skipped into the grand entry of the Cherokee Nation’s annual powwow. An honored participant, the little girl followed in the steps of the Nation’s principal chief and first lady, and behind them a long line of Cherokees wearing U.S. military uniforms, tear dresses and ribbon shirts, buckskin, and jingle dresses fell into the circle. In brush arbors and bleachers, spectators visited with friends and relatives, and even deeper outside, the thick dark northeastern Oklahoma night, full and bright with crickets, stars, and spirits. At the very center of it all, the little girl smiled in the embrace of her Cherokee people. She danced in the heart of their landscape and in the landscape of their hearts.

Then the drum stopped, cameras flashed, and the little girl was whisked away to a tribal safe house. A contentious legal battle was being waged over her future, and there had been threats against her and her family. Beauty in a fade, to quote the immortal John Trudell.

Within weeks, the little girl, clutching a teddy bear, would be strapped into a car seat, and driven a thousand miles away from her family and home. The Supreme Court ruled the Indian Child Welfare Act did not apply, that her dad – her own loving biological Cherokee dad who had just served a tour of duty in Iraq and was adjudicated “fit” for parenthood – didn’t have a case for custody.[1] As a result, the little girl, like generations of Indian children before her, was taken from her Indian family. Taken away from her sister, cousins, grandparents and great-grandparents, away from her princess toys and pet geese, away from shell-shaker lessons and stomp grounds – to wake up and begin her life anew in a different home, with non-Indian adoptive parents. Across Indian Country, people prayed that she would survive this experience and promised to be there one day when hopefully she would return.

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The lead essay recites a parade of horrible things that have ostensibly happened to Indian kids placed in Indian foster and adoptive families. The message appears to be that Indian kids suffer in Indian homes. Worse still their connections to tribal communities are attenuated and race-based. And if only we could reform the Indian Child Welfare Act, these kids would be placed with non-Indian families where they would be much better off.

Indian children have, unfortunately, also been taken from tribal families and abused or even killed in placements with non-Indians. Advocates concerned about the wellbeing of children are typically as concerned with these stories, and much broader problems with the child welfare system in the U.S., as they are focused on attacking ICWA alone.

Given that the privacy and wellbeing of children is at stake, moreover, it is important to shift the focus from anecdotes to data, and from rhetoric to law. From this perspective, it becomes clear that we, as a nation, have already experimented with the “wholesale separation” of Indian children from Indian families. The results of that experiment were tragic and should not be repeated. The challenge today is ensure compliance with ICWA, a statute that marshals the political status, family structures, and cultural practices of tribes toward the care of children.

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ICWA was passed by Congress in 1978 to address a national crisis. Surveys by the Association for American Indian Affairs revealed that, in 1969 and 1974, 25-35% of Indian children in the United States were being removed from their homes, and 80-90% were placed in non-Indian homes. In Minnesota, Montana, South Dakota, and Washington, Indian children were placed outside their homes at five to nineteen times than that of the non-Indian rate. In Wisconsin, Indian children were at risk of being separated from their families at a rate 1600 times greater than non-Indian children.

Why were these Indian children removed? States were asserting unprecedented authority over Indian family matters that had previously been governed by tribal and federal law. Congress found that quite often state child welfare workers’ cultural ignorance and economic bias caused them to allege neglect or abuse of Indian children where there was none. Indian children might be removed because family services perceived their material living conditions as inadequate or extended family care as inattentive, when in reality the children were safe, healthy, happy, and bonded with their tribal communities. Or just because the child welfare worker thought the Indian child – whether living on a reservation or city – would be “better off” with a non-Indian family. Such decisions undermined the role of Indian tribal governments in ensuring the longstanding rights of Indian children and families pursuant to tribal law.

These modern Indian child welfare practices have an insidious heritage: since 1850, federal policy sought to “civilize” Indian tribes by taking and re-programing Indian children. Indian children were placed in boarding schools where they were forbidden to speak tribal languages and forced to practice Christianity rather than tribal religions; during the summer they were farmed out to white families as laborers. Self-described “Friends of the Indian” claimed these placements would “Kill the Indian and Save the Man” by furthering assimilation into mainstream society. In the 1950s and 1960s, some religious organizations encouraged their members to adopt Indian kids, and certain adoption agencies were formed with such placements in mind.

But Indian children were not saved. Congress received testimony showing the opposite. Indian children placed in foster care, adoptive homes, and institutions experienced a suicide rate twice that of the reservation suicide rate and four times that of the general population. They experienced elevated rates of drug and alcohol abuse. Even children placed with loving, devoted families experienced a sense of abandonment, cultural dislocation, and other psychological harms. And for the Indian parents and siblings left behind, removal of a child “effectively destroyed the family as an intact unit.”  

Congress passed ICWA “to promote the stability and security of Indian tribes and families” by establishing “minimum Federal standards for the removal of Indian children from their families.” Procedurally, the law provides for tribes to receive notice when one of their child members is involved in a custody proceeding, and requires or allows for certain cases to be transferred to tribal court. Substantively, ICWA requires “active efforts” to keep Indian families together, and when that is not possible, it sets forth placement preferences that prioritize extended family and members of the child’s tribe. ICWA is meant to reverse generations of bad policy and, when enforced, it supports Indian families through enhanced support at the tribal, state, and federal levels.

Critics complain that ICWA is a race-based statute that improperly limits the options of Indian children based on their race. But no matter how you look at it, that’s just wrong. First, Indian status is not “racial” but rather “political” as a matter of law. The closest analogy to the Cherokee Nation is not a racial group like African Americans or Latinos, but rather a government like the state of Oklahoma, albeit a government that is unique because of its culture and history.

The political status of tribes arises from hundreds of years of treaties and engagements among governments. In the case of the Cherokee Nation, treaties date back at least to 1721, revealing almost 300 years during which the tribe has been legally acknowledged as a sovereign with the right and responsibility to take care of its citizens. This is the very same right that Congress recognized in ICWA and that the Cherokee Nation, along with 566 other tribes, is enforcing today.

It is the prerogative of a government to determine its citizenship requirements. The Cherokee Nation Constitution provides, in relevant part, “All citizens of the Cherokee Nation must be original enrollees or descendants of original enrollees listed on the Dawes Commission Rolls.” The Dawes Rolls were compiled in 1907 to determine eligibility for individual allotments of Cherokee lands.

Tribes vary with respect to the census, roll, or other list they use, and whether or not they have a “blood quantum” requirement. To find out what the rule is for enrollment in a particular tribal nation, you look up the constitution or legal code of the tribal government, usually available on its website. The tribe administers enrollment proceedings that require the production of documents, not totally unlike U.S. citizenship or state residency processes, and if successful, the tribal member receives an identification card conferring eligibility for various benefits. This process is not a mystery. It is not a baby elephant. It is federal Indian law.

This history and its ongoing expression in federal Indian policy underscores the distinctly political nature of Indian status today. It also explains why, as the Supreme Court held in Morton v. Mancari, the traditional notions of “race” that inform equal protection law do not and should not invalidate statutes enacted for the benefit of Indian tribes and tribal members. The Multi Ethnic Placement Act has exceptions for ICWA cases because being a member of a federally recognized tribe is not an ethnicity or race.

Lest this seem like a legal formality, consider how it works in practice. Governments, including states and tribes, regulate child welfare. States enjoy considerable latitude in this arena, such that the treatment of children and parents varies across jurisdictions. Some states, for example, offer a great deal of protection to biological parents, ensuring both mother and father have enough time and information to make a considered decision about putting a baby up for adoption. By contrast, states like Utah and South Carolina offer so-called “quickie adoptions” with short waiting periods and minimal notice requirements to unmarried fathers. While it is possible that providing better safeguards to biological fathers could help to avoid heartache later, as in the Cherokee case mentioned above, these policy decisions are currently thought to fall within the prerogative of state governments.

Through ICWA, tribes also exercise jurisdiction over child welfare. The fact that a tribal or state court takes the time to notify Indian parents (including unwed fathers), or tries to keep a family together (though efforts at reunification), does not violate the law or norms of equal protection. Tribal courts, like all courts, look closely at the best interests of the child. They are particularly well-suited to evaluate placements in tribal families, as well as special concerns about the trafficking of Indian children. When it’s best for an Indian kid to have a non-Indian placement, a tribal court is able to make that decision. That’s precisely what happened when the Supreme Court sent the case of Mississippi Choctaw Indians v. Holyfield back to the tribe: the tribal court affirmed the placement of Choctaw twins with a non-Indian family, deciding that it was in the twins’ best interests to do so.  

If a custody proceeding takes place in state court, ICWA (just like the laws of 45 states) prioritizes placement with “a member of the child’s extended family.” Extended family members need not be “Indian” in order to qualify, a point illustrated by the recent case where a Choctaw child was placed with her sister and non-Indian family members in Utah. If an extended family member is not available, ICWA turns next to members of the child’s tribe and then to other Indians. These standards recognize that, in tribal communities the concept of “relatives” includes people beyond the biological family, including members of other tribes.  

Evidence of systemic failure to comply with ICWA has recently motivated reform as well. New regulations from the Bureau of Indian Affairs provide guidance to states courts and agencies regarding child abuse, neglect, and adoption cases involving Indian children. The federal agencies responsible for Indian health, juvenile justice, and child welfare are, for the first time, formally coordinating their duties to Indian children. Tribes are redoubling their efforts to recruit and regulate tribal foster care families, administer programs supporting children, and work with states in cooperative approaches to child welfare. These reforms are all welcome and necessary for restoring Indian civil rights (and human rights) lost during earlier periods of harmful intervention by government, institutional, and religious actors alike.

Finally, while the lead essay would seem to call for a cultural affiliation test, most courts have rejected such standards as impossible to administer, inconsistent with the political status of tribes, and oblivious to the fact that today’s Indian families are living with a legacy of forced cultural assimilation that necessitated ICWA’s passage in the first place.

*******

No one is subject to ICWA merely because her great-great-great-great grandfather was Choctaw. It is meaningless to describe a child as “1/256th Cherokee.”  ICWA provides important legal protections to children who are eligible for citizenship in a federally recognized Indian tribe and affirms their individual rights under tribal and federal law. May we see them dancing in the light and love of their families.

 

Note

[1] In Adoptive Couple v. Baby Girl, 398 S.C. 625, 649, 653–655 (2012), the South Carolina Supreme Court noted the biological father was a fit and loving parent, and placement in his home provided the child with the familial and tribal connections that ICWA meant to facilitate. Justice Scalia wrote in the Supreme Court case: “This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.” Adoptive Couple v. Baby Girl, 133 S.Ct. 2552, 2572 (2013) (Scalia, J., dissenting).

In the end, I agree with Timothy Sandefur that the Indian Child Welfare Act is an exceedingly bad law, for reasons I’ll get to in due course. But I’d rather start off with a couple of ways in which my perspective may differ from his, and even echo certain of Matthew Fletcher’s themes.

As libertarians, we shouldn’t want to make it too easy for the law or the state to snatch children from custodial parents. Its standard in doing so should ordinarily have to be significantly more demanding than just the child’s “best interests.” Way back in 1991 (I feel old), in my book The Litigation Explosion, I criticized the “best interests of the child” standard in the context of custody litigation between parents: it provided “hair-trigger litigability” against the rights of generally competent parents; depended too much on the subjective assessments of the judge, social workers, and experts on the scene; and was intrusive and expensive to litigate since every little fault and virtue of the parents might prove relevant and had to be inquired into.  

The horror of fighting a legal battle to save your kids is not much lessened when the battle is against not a former spouse but the state itself. If you are poor, good luck trying to mount the best defense of your parental competence with skilled lawyers and hired testimony from social workers, psychologists, or other experts. Your state adversary, on the other hand, will not lack for lawyers, social workers, and experts, and it is natural for a judge to find its experts credible.   

All of which tends to explain why, were the loss of our own parental rights at stake, most of us would want the standard to be something more on the lines of “likely…serious physical or emotional damage” to our child by remaining with us, rather than merely the furtherance of his or her best interests by moving into the home of some pleasant, well-qualified couple. We would want the cause adjudicated not under a mere preponderance-of-the-evidence standard, but under clear-and-convincing or some higher standard. We would want our state opponent to have to invest in various procedural and notice protections, like a high degree of formality should we waive our rights, and we would probably want legal presumptions that leaned toward grandparent or aunt/uncle care rather than assignment to strangers. Such presumptions and safe harbors should appeal to libertarians as speed bumps preventing the state from zooming into the domain of private family life. They should also appeal to more traditional conservatives in that they recognize that family is special: she may not be a great mom, but she’s your mom.

One more point before I start circling around to my areas of agreement: especially in this area, we need to be cautious with horror stories. Every policy choice in the child welfare area will generate some: there are horror stories about adoption and likewise about kids negligently left in birth families, horror stories about group home care and grandparent care. For child welfare officials, the incentive can be to react to one headline-making tragedy by veering into the opposite mistake. But the buffeting and vacillation can leave public agencies in the untenable middle zone of holding back kids from any definite final placement, not clearing them for adoption while also not trusting their parents, so that they bounce around for years among foster homes and failed attempts at family reunification. And yet that seems to be one of the surest ways to create horror stories. Let us have no illusions: family collapse leaves no zero-risk options, no ways of arranging matters that are sure to save the at-risk family members from further jeopardy.

Someday we might want to design a legal regime that minimizes state intrusion into families, limits the discretion of faraway bureaucrats, and empowers parents by clarifying their rights. But ICWA sure isn’t it. It’s a power play that’s meant to serve the interests of one governmental actor on the scene, the tribe. It regards children and parents as tribal resources to be conscripted, and it designates a vastly overbroad group of children to grab as “Indian children,” the better to maximize resource intake. Liberal foundations and child welfare agencies can apply all the spin they want to disguise that fact, but – given that those same groups bear much responsibility for the many failures of the wider, non-Indian child welfare system – I hope I am forgiven in discounting their opinion.

To read some of the cases Timothy Sandefur cites is to be shocked at how little individual rights count for in the ICWA scheme. Start with the Holyfield case, named by the late Antonin Scalia as the most troubling he had encountered in his many years on the Court, given its cruel clash between the dictates of the statutory language and the interests of the actual family before the court. Both birth mother and birth father wanted to escape the tribe’s jurisdiction in favor of an adoptive placement they saw as promising a better life for their child. Too bad: their infant was tribal property.

You might rationalize the Holyfield result on the grounds that by living on a reservation the parents had bowed to its jurisdiction. But then you run into the reality that ICWA binds the rights of parents who have not lived in “tribal relations” or on a reservation, and who have perhaps never set foot in Indian country. You discover In re the Adoption of T.A.W., a case from Washington where the parent with Indian ancestry wanted the tribe to stay out of it, to no avail. And the Oklahoma case where the Cherokee father sought to disenroll from tribal membership in vain.

Indian law more generally is erected on a series of ever-shifting fictions about what kind of sovereignty an Indian tribe might be –  a fully sovereign nation, like France or Japan? More like a state or territory or municipality? A paternalistic trust for an extended family?

Whichever fiction we go with, we must realize that ICWA makes no pretense to symmetry in rights as between either sovereignties or parents. The child of an Indian mother and Anglo father, living deep in Indian country, is tribal property. So is the child whose parentage is the other way round, born in downtown Boston. It may be that you, yourself, have spent every day of your life in Brooklyn, and the guy you met that night at the bar never mentioned (and perhaps only dimly remembered himself) some tribal enrollment out West when he was a kid based on his 1/64th heritage. You lose: your child is tribal property and you must submit to a tribal court to prepare for his “placement … in … homes [that] reflect the unique values of Indian culture,” even if his dad had no such interest or connection. And what of your own family’s side of your infant’s cultural inheritance, which might be Korean, or African-American, or Dominican, or Russian-Jewish, or Irish? The law cares not.  

Healthy polities do not need to build walls to prevent escape. Nor will walls serve to restore those polities to health.

Walter Olson has a point: specific horror stories are of limited usefulness, although they are important for illustrating how abstractions like “active efforts” really work in practice. But with that in mind, let’s put aside specific examples like the Lexi and Veronica cases for now. Let’s also put aside paranoid ad hominem claims about the “adoption industry,” and false accusations of racism, and let’s stipulate to the fact that before ICWA passed, federal and state governments imposed abusive policies that hurt Indian parents and children. Nobody denies that.

The question here is whether ICWA is the best we can do today for Indian children—who, again, are citizens of the United States, just like you and me. ICWA fails that test.

First, consider ICWA and race. Unless I misunderstand, Prof. Fletcher and I agree at least on one thing: the law should be the same for all children, regardless of their race. He thinks ICWA is the “gold standard,” and I don’t, but either way, the rules should be the same whether a child’s ancestry is Native American, or white, or Hispanic, or Asian, or black, or whatever. Unfortunately, that’s not how ICWA works. It classifies children as “Indian” based on eligibility for tribal membership—and eligibility is solely a function of genetics.

That bears repeating, because Prof. Carpenter says tribal membership is a political, rather than a racial, category—and that matters because the Supreme Court is highly skeptical of racial categories, but not of political ones. In Morton v. Mancari (1974), the Court distinguished between laws that apply to people who are members of tribes (a political group) and laws that are “directed towards a ‘racial’ group consisting of ‘Indians.’” And in later cases, the Court has refused to blur that distinction. In Rice v. Cayetano (2000), it struck down a Hawaii law that allowed only Native Hawaiians to vote for certain officials. Although defenders of the law relied on Mancari to argue that “Native Hawaiian” was a “political” rather than “racial” category, the court concluded that the Hawaii law “single[d] out ‘identifiable classes of persons … solely because of their ancestry or ethnic characteristics.’” Hawaii had even defined the term “Native Hawaiian” as “‘any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to [European contact] … [or] to the descendants of such blood quantum of such aboriginal peoples.’” Although this definition included factors other than race, it was still a racial classification.

Like the Hawaii law, ICWA singles out a class of people based solely on their ancestry: only children who are eligible for tribal membership (and whose parents are members) qualify as “Indian children” under that law—even if they have no cultural affiliation with a tribe.

In fact, ICWA isn’t premised on tribal connection at all, but on generic “Indianness.” Its foster-care and adoption preferences, for example, require that children be placed with “other Indian families” regardless of tribe, rather than with parents of other races. As Prof. Solangel Maldonado notes, “Under ICWA, all Indian families, other than members of the child’s tribe, are treated equally regardless of cultural, political, economic, or religious differences between the tribes, or the fact that there are over 250 different tribal languages. Further, ICWA makes no distinction between ‘local’ tribes and those located thousands of miles from the child’s tribe.” But there is no such thing as generic “Indianness.” That’s “an arbitrary collectivization”—a racist construction fashioned by whites and imposed by Congress in ICWA.

Some state courts have tried to avoid the obvious racial nature of ICWA by refusing to apply ICWA to children whose only connection to a tribe is biological. Critics have condemned these efforts on the grounds that they interfere with the tribes’ power to determine their own membership criteria. But as the California Supreme Court observed last month, there’s a crucial distinction between tribal membership—which is entirely a matter of tribal law—and “Indian child” status under federal law. The latter is subject to constitutional constraints, including the fundamental rule that the government can’t treat people differently on the basis of their biological ancestry—including in adoption cases.

Of course, even if “Indian child” status were a political, instead of a racial, category, it would still be problematic. Our Constitution forbids discrimination on the basis of national origin just as much as it forbids racial discrimination, and it’s unthinkable that Congress could establish different child welfare standards for the children of Republicans than for Democrats, or rules for children whose grandparents emigrated from Japan as opposed to other countries, or a separate adoption law just for children born in Nevada. One of the most basic elements of due process of law is that courts must address the specific facts at issue in a case, and make individualized judgments rather than blanket assumptions premised on a race, national origin, or other “immutable characteristic[s] determined solely by the accident of birth.” For kids subject to ICWA, though, the crucial factor—virtually the deciding factor—is Native American DNA.

Prof. Fletcher repeats the soundbite that ICWA is “the gold standard” of child welfare. But saying those words doesn’t make them true. In fact, ICWA:

• Blocks courts from using the protection of the best-interests-of-the-child standard, which for centuries has been considering the guidestar of all child welfare cases;
• Deprives Indian children of individualized determination of their cases, by presuming that it’s in their best interests to have their futures decided by tribal governments, simply because they have Native American DNA;
• Makes it harder to protect children from abuse or neglect, because it blocks termination of parental rights unless the likelihood of serious abuse is established “beyond a reasonable doubt” by “expert witnesses”—a higher standard than applies even in death penalty criminal cases;
• Subjects children and adoptive parents without notice or choice to the jurisdiction of tribal courts anywhere in the nation;
• Deprives children of freedom of association rights by assigning them to tribal custody and requiring state officials to enroll them in tribes.

That’s why caseworkers, lawyers, and foster and adoptive parents are often reluctant to take on cases involving Indian children. As the California Court of Appeal has put it, “ICWA requires Indian children…to be treated differently from non-Indian children…. As a result…the number and variety of adoptive homes that are potentially available to an Indian child are more limited than those available to non-Indian children, and an Indian child who has been placed in an adoptive or potential adoptive home has a greater risk…of being taken from that home and placed with strangers.”

In short, ICWA is no gold standard. It’s another example of Congress promising to help Indians—and then imposing rules that make lives harder for our most vulnerable citizens. It segregates children of Native ancestry from children of other races, denies them legal protections that apply to all other kids, and makes it harder for them to find permanency in homes with adoptive families eager to give them love and permanency. And it does all of this solely on the basis of…well, let’s be frank: the one drop rule.

I mentioned before that while I agree with Walter Olson that specific cases can be distracting, they’re also valuable to illustrate how ICWA’s bland and abstract phrases really work in practice. That’s why we’ve mentioned cases like the Lexie, case, the Veronica case, the T.A.W.  case, and others. These stories are important, and Professors Fletcher and Carpenter have given us their versions of the Lexi and Veronica cases, so I want to look at them with an eye to the principles they dramatize.

But first let’s consider another case: that of Kiyo Sato. Sato was born in the same state where I was born, California, and she grew up in my former hometown, Sacramento. She even went to my alma mater, Hillsdale College. Like me, she’s an American citizen, whose rights are guaranteed by the Constitution. But in 1942, the federal government decided to subject her to a different set of rules—rules that didn’t apply to my family—solely because she had Japanese ancestry. She was sent to live at the Poston Internment Camp.

Biology was the only difference between her and me. And the government decided that it was the difference that mattered. She still remembers the shock her family felt. “Doesn’t [FDR] understand that we are loyal American citizens? Doesn’t he know what he is doing to…all of us with more than 1/16 Japanese blood[?]… How can he do this to his own citizens?”

But the federal government decided that political affiliation followed a person’s biological ancestry, and it imposed a blanket presumption on people of that ancestry, depriving them of the due process right to be regarded as an individual. Sato recalls lying in bed “feeling stripped like a non-person, like a dandelion puff at the mercy of every waft of air. We go wherever we are sent. We do whatever we are told to do.”

When the Supreme Court considered Japanese-American internment, it remarked that “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,” and that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” This was the origin of the “strict scrutiny” test that today applies when government imposes different rules on people based on race (although, sadly, the Court upheld the discrimination in that case).

What Korematsu teaches us—and what the awful history of American Indian policy teaches us—is that it’s wrong for Washington, D.C., to dictate its vision of what’s best for people based on race.

ICWA equates biological ancestry with political status, and apportions rights and restrictions accordingly. Its separate and substandard rules are based on the theory that children are tribal “resources” because of their genes. That’s the word it uses: “resources,” like trees, coal—or dandelions.

I do not deny the validity of tribal sovereignty. Tribal governments deserve as much respect and responsibility as any other government. But when tribal sovereignty conflicts with the rights of individuals, individual rights must prevail. What James Madison said of state sovereignty is equally true of tribal sovereignty: “Was, then, the American Revolution effected…not that the people of America should enjoy peace, liberty, and safety, but that the government…might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?” he asked. “[T]he public good, the real welfare of the great body of the people, is the supreme object to be pursued; and…no form of government whatever has any other value than as it may be fitted for the attainment of this object…. [A]s far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.” Nothing should take priority over a child’s individual best interests. And American Indian kids are citizens of the United States; federal and state governments owe them a duty of protection that must trump any show of “respect” to another sovereign.

Now let’s look at the Lexi case. Born in 2009 to a drug-addicted mother and a father with an extensive criminal history, Lexi’s only connection to the Mississippi Choctaw tribe is biological. Her father wasn’t even aware that he was a tribal member until after Lexi was placed in foster care. She thrived with her foster family, came to call them “mommy” and “daddy,” and to regard their other children as her siblings.

Were her ancestry Japanese like Sato’s, it would have been possible for her foster parents to seek adoption. But because her great-great-great-great grandfather was Choctaw, she was subject to ICWA. That made her a dandelion. It meant the state had to engage in “active efforts” to reunify her with her father, which failed in 2012 when the father, released from prison, decided he was no longer interested. At that point, the tribe was given power to order her placed with her step-grandfather—a non-blood relative with no Indian heritage, who lives in Utah—which the tribal government deemed “extended family.” (It’s not true that placement with the Utah family was the plan all along, as many have claimed.)

Lexi’s foster parents then asked the court not to apply ICWA—which is allowed if a court finds “good cause.” But ICWA doesn’t define “good cause.” Nobody claims the Utah family was unfit, but the trauma of separating Lexi from the family she’d lived with for two thirds of her life, and called her “mommy” and “daddy,” should certainly have counted. Yet the court-appointed lawyer for Lexi argued that the judges should not consider her individual best interests, and refused to tell the court whether she wanted to be sent to Utah. And thanks to her racial ancestry, the court ordered that Lexi be removed in compliance with the wishes of the Choctaw tribal government. The separation would be traumatic, the court said, but the evidence “did not reach to the level of certainty that [she] would suffer extreme detriment.”

In other words, she’ll get over it.

The foster parents appealed, but that court affirmed—and its wording illustrates the callous racism by which ICWA treats children like dandelions, rather than people: It declared that courts “should take an Indian child’s best interests into account as one of the constellation of factors.” For kids of other races, of course, the child’s best interest is the overriding consideration. “When the best interests of an Indian child are being considered,” the court continued, “the importance of preserving the child’s…cultural connections often cannot be separated from other factors.”

Cultural connections? Lexi has no cultural connection to the tribe. Her only connection is genetic. As the Chippewa author David Treuer writes, “you can’t measure culture by percentages of blood.” Once again, we see the implicit equation of genetics with loyalty—and a separate legal system based on biology—one that treats children as non-persons.

There are many misconceptions about the Lexi case, but the point here isn’t to decide who should have custody. Maybe it really is in her best interest to move to Utah. But if so, why not use the same best interests test that applies to all other kids? And what could ever justify including race as one of the “constellation of factors” that applies to a child welfare case?

Finally, Veronica. A reader could be forgiven for coming away from Prof. Carpenter’s version of the story thinking she’d been kidnapped from loving parents and whisked off to oblivion by heartless Supreme Court vultures. The facts are quite otherwise.

Veronica was born to an unmarried couple in 2009. Her mother, Christy Maldonado, chose to break off the relationship with the birth father, Dusten Brown, who was Cherokee, before Veronica was born. Veronica wasn’t Brown’s first child; he had a 6-year-old from a previous relationship, and he paid child support for that child, but only after he’d fallen $11,000 in arrears and a court ordered him to pay. And he refused to provide financial assistance to Christy, or accompany her to doctor visits, or even return her calls. As Justice John Kittredge of the South Carolina Supreme Court wrote, “[t]he reality is Father purposely abandoned this child and no amount of revisionist history can change that truth.” Brown even testified that he was happy to give up his parental rights as long as Christy agreed to raise the child on her own.

That was something she couldn’t do. Already a single mother of two, she made what she called the hardest decision of her life: to put Veronica up for adoption. She asked Brown if he would give up his parental rights and he said yes. After that, he had no contact with Christy and contributed nothing to Veronica’s care.

Nobody disputed that Veronica’s adoptive parents would take good care of her. Melanie Capobianco had a Ph.D. in psychology, and Matt was mechanic at Boeing. They became close with Christy, helped her financially, and were present at Veronica’s birth. Fearful that ICWA would block the adoption, Christy was reluctant to mention Brown’ Cherokee citizenship, and due to a paperwork error and a mistake by Brown’s lawyer, it was initially thought that Veronica lacked Native American blood. When Brown received the adoption paperwork, he signed a statement that he was not contesting the adoption.

Only in March of 2010, months after Veronica’s birth, did the tribe confirm Brown’s membership and intervene in the case. The trial court then applied ICWA and ruled that the Capobiancos hadn’t met the separate standard ICWA imposes. That standard required them to take “active efforts” to “reunite” Brown and Veronica—even though the Brown and his daughter had never been “united” to begin with. In fact, the South Carolina Supreme Court, ruling for Brown, declared that it the Capobianco had to “attempt[] to stimulate [Brown’s] desire to be a parent” before they could adopt Veronica.

This halted the adoption. Decisions about Veronica’s future would not be made by her mother, Christy, or by her caring adoptive family, the Capobiancos, as would have been the case if Veronica were white, or black, or Hispanic, or Asian. Instead, her fate would be decided by an Indian tribal government, because of her genetics. “I could not believe that, after disappearing on us, [Brown] was trying to derail the family I had worked hard to give to my daughter,” said Christy. “Why should a man who said he wanted no responsibility for his baby have more rights than I did just because he belonged to a tribe?”

When the case was appealed to the Supreme Court, the justices didn’t address the constitutional questions directly—although they expressed concern that ICWA could allow “a biological Indian father [to] abandon his child in utero and refuse any support for the birth mother…and then…play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests.” Such a possibility would likely cause prospective adoptive parents to “pause before adopting any child who might possibly qualify as an Indian.” This race-based handicap, the Court noted, “would raise equal protection concerns.”

The Court ruled that ICWA didn’t apply in the first place because it only applies to prevent “the breakup” of an Indian family—and no “Indian family” existed when Veronica was born, since Brown had already abandoned her. That meant there was no Indian family to be broken up. ICWA’s “active efforts” requirement is “sensible…when applied to state social workers who might otherwise be too quick to remove Indian children from their Indian families,” the Court noted, but it would be odd to apply it

in the context of an Indian parent who abandoned a child prior to birth and who never had custody of the child. The decision below illustrates this point. The South Carolina Supreme Court held that [ICWA] mandated measures such as “attempting to stimulate [Brown’s] desire to be a parent.” But if prospective adoptive parents were required to engage in the bizarre undertaking of “stimulat[ing]” a biological father’s “desire to be a parent,” it would surely dissuade some of them from seeking to adopt Indian children. And this would, in turn, unnecessarily place vulnerable Indian children at a unique disadvantage in finding a permanent and loving home, even in cases where neither an Indian parent nor the relevant tribe objects to the adoption.

The ruling meant the Capobiancos could adopt Veronica. She didn’t vanish off the earth—she wasn’t blown away like a piece of fluff. She was placed with a family that loves her and takes good care of her—just as her mother wanted, and as her father once agreed.

It’s not an ideal situation—these cases never are. But it’s an outcome that promises the best for Veronica as an individual—as she deserved to be treated; as Kiyo Sato and Lexi and you and I deserve to be treated—instead of as a fungible member of a racial group, as a mere “tribal resource,” or as a dandelion seed, to be blown wherever she’s sent.

            In the 1830s, Michigan Anishinaabe ogimaag (leaders) such as Leopold Pokagon and Aishquagonabee negotiated treaties with American leaders that reserved homelands within Anishinaabeki (the lands of the Anishinaabe people), acknowledged tribal governmental authority, and obligated the United States to protect tribal self-government. The modern tribal communities that survive today because of the foresight of the ogimaag nearly two centuries ago are encouraging the Anishinaabeg (Odawa, Ojibwe, and Bodewadmi people) to speak in their language, Anishinaabemowin, govern in accordance with their laws, inaakonigewin, and to act in accordance with Anishinaabe ethics and morality, mino-bimaadziwin. The treaties still serve as the template for the federal-tribal relationship in the modern era. Federal Indian law statutes such as the Indian Child Welfare Act (ICWA) are the manifestation of federal obligations to Indian tribes.

 

Indian Tribes are Nations

            Indian tribes are nations. Indian tribes have existed since time immemorial and predate the formation of the United States. The Framers of the Constitution wrote Indian tribes into the text of the Commerce Clause and explicitly acknowledged tribal nationhood. From the earliest days of the American republic, the United States exercised its treaty power and entered into more than 400 treaties with Indian tribes. Most of the terms of those treaties remain law, the supreme law of the land under the Supremacy Clause, as Chief Justice Marshall held centuries ago. The relationship between the United States as superior sovereign and Indian tribes as domestic nations is best analogized as a trust relationship, with one sovereign coming under the protection of a superior sovereign.

            The meat of the trust relationship is that the United States guarantees to Indian tribes their right to make their own laws and be governed by them. In those hundreds of treaties and numerous federal statutes and regulations, the federal government also guarantees public safety, law and order, health, housing, and a full menu of government services to Indian country. Since the 1970s, the United States and Indian tribes have engaged in the modern version of their longstanding government-to-government relationship through the negotiation and administration of self-determination and self-governance compacts – not unlike treaties – that manage the governance of Indian country.

            As nations, Indian tribes have adopted citizenship criteria that fit within the modern liberal traditions of jus sanguinis and jus soli. Jus sanguinis refers to citizenship determined according to the citizenship of a child’s parents, or through blood; jus soli refers to citizenship determined according to the location of a child’s birth, or through soil. Indian tribes as domestic nations that have suffered through centuries of land dispossession, forced removal and separation of Indian families, and cultural, religious, and political ethnocide have brilliantly adopted citizenship requirements that allow for a non-racial legal and political status not confined to territorial communities. Each Indian tribe adopts its own citizenship criteria though its particular political process that takes into consideration the tribe’s land base, political traditions, and familial customs. Tribal law allows for Indian people who wish to be tribal citizens to live wherever they like and to still maintain their political connection to their tribes.

 

Tribal Law

Indian tribes act to preserve tribal cultures and languages, restore tribal lands and sacred sites, and to serve and protect tribal citizens, wherever they are located. Consider Indian child welfare. Tribal involvement in Indian child welfare on and off reservation was the law long before the enactment of ICWA. ICWA merely clarifies the relationship between tribes and states, and instructs the states that tribal law may be dispositive in certain cases.

The laws of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB) in Michigan are typical. When a tribal social services provider is notified that a child on tribal lands is in need of emergency services because of abuse or neglect, the tribal government acts in accordance with tribal law “[t]o take such actions that will best serve the spiritual, emotional, mental, and physical welfare of the child and the best interest of the Tribe to prevent the abuse, neglect and abandonment of children.” 10 GTB Code § 105(e). Tribal law determines procedures and standards for when a tribe will intervene in an off-reservation case, and for when the tribe will seek a transfer to tribal court:

When determining if and when a Motion to Transfer Jurisdiction to Tribal Court is appropriate, the presenting officer shall consider: (1) The best interests of the child; (2) The best interests of the Tribe; (3) Availability of services for the child and his or her family; (4) Prospects for permanent placement of the child; and (5) Conservation of tribal resources.

10 GTB Code § 105(e). Tribal law then requires the tribal court to make an even more searching inquiry in deciding whether to accept the transfer:

The Tribal Court shall consider the following factors: (1) The best interests of the child; (2) The best interests of the Tribe; (3) Availability of services for the child and his or her family; (4) Prospects for permanent placement for the child; and (5) Conservation of tribal resources. (6) The family’s ties to the GTB or other Indian community.

10 GTB Code § 105(g). The code also expansively defines “best interests of the child”:

“Best Interests of the Child”: As used in this Code, the sum total of the following factors to be considered, evaluated, and determined by the Court: (1) The love, affection, and other emotional ties existing between the parties involved and the child. (2) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any. (3) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this Tribe in place of medical care, and other material needs. (4) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. (5) The permanence, as a family unit, of the existing or proposed custodial home or homes. (6) The moral fitness of the parties involved including the criminal history of any person living in the same household as the minor child. (7) The mental and physical health of the parties involved. (8) The home, school, and community record of the child. (9) The reasonable preference of the child, if the Court considers the child to be of sufficient age to express preference. (10) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. (11) Domestic violence, regardless of whether the violence was directed against or witnessed by the child. (12) Any other factor considered by the Court to be relevant to a particular child custody dispute. (13) The willingness to provide the child with a strong cultural identity and to expose the child to the customs, values and mores that may form the child’s cultural background.

10 GTB Code § 102(d). Finally, the confidentiality of the proceedings to protect the privacy of the families involved in child welfare proceedings is paramount to the Grand Traverse Band. 10 GTB Code § 618. This is an example of mino-bimaadziwin.

In determining whether to intervene in a case involving an Indian child, or whether to seek transfer to tribal court, the Grand Traverse Band engages in a searching, meaningful analysis of the best interests of the child. The best interests of Indian children drive the legal analysis for all the tribes involved in the high profile cases discussed in this series, including the Cherokee Nation of Oklahoma and the Choctaw Nation of Oklahoma.

 

Law versus Rhetoric

This civics lesson rebuts the rhetorical essays of Mr. Sandefur and Mr. Olson, which at bottom carelessly misstate the reality of Indian tribes, federal Indian law, and the purpose of federal statutes that outline the contours of Indian law. Ironically, the even the real cases that Mr. Sandefur and Mr. Olson suggest are the best attacks on ICWA are cases that would not have been difficult if the parties had complied with ICWA’s procedural protections in the first instance.

In legal analysis, facts matter, and so it is time to return to the war on facts in this series. Mr. Sandefur still tries to attack ICWA in the Alexandria P. matter, even though California law that applies to all children would have Lexi back with her relatives, an outcome all parties excepting the foster parents wanted and prepared for. Along the way, Mr. Sandefur incorrectly states that the Mississippi Band of Choctaw Indians was involved when in fact it was the Choctaw Nation of Oklahoma. Mr. Olson incorrectly assumes that the Shoalwater Bay Tribe had interfered in In re T.A.W. when in fact the non-Indian parent filed the appeal asserting ICWA claims; the tribe is not a party to the case and opposes the non-Indian parent, who served time in prison for robbery and whom the tribal court found to have engaged in domestic violence. One could read the courts’ opinions to find these facts, except in one case, Baby Girl. Here, Mr. Sandefur forgets that the Cherokee dad was an active duty serviceman served with adoption papers immediately before his deployment to an active war zone without the advice of counsel. These are facts the Supreme Court majority also chose to ignore. Conversely, the South Carolina Supreme Court’s opinion addressed all these facts in reaching the opposite outcome. Facts, in law, matter.

All of the cases discussed in this series are complicated cases with difficult fact patterns, and perhaps no one case can vindicate or condemn the ICWA. Consider Mr. Olson’s reference to In re M.K.T. He seems to argue that the case is about a Cherokee father who tried to relinquish his tribal membership in order to avoid ICWA’s application, but the Cherokee Nation stubbornly refused to yield. The facts are more complicated and actually highlight how ICWA could have been useful if the parties had complied initially. The Cherokee father signed the tribal membership relinquishment form without the advice of counsel. The foster parent brought him the form while he was in prison (recall here the incarcerated parent that Mr. Olson accidentally champions by attacking the tribe in T.A.W.), bringing a notary along to cement the deal. The father later testified that he did not understand the legal ramifications of his relinquishment under tribal law, and that no one informed him that there was an Indian family available or anything else about the state of his child. All ICWA requires is the basic procedural right for Indian parents to seek the advice of counsel and to give knowing consent before a judge before their parental rights are terminated. The coercion of an imprisoned father into signing away his rights is a strange fact pattern on which to rest any conclusions about ICWA. Had the Cherokee father access to legal advice in the first instance like the public policy grounding ICWA supports, the case likely would never have been litigated, let alone reached the Oklahoma Supreme Court. The same was true for Baby Girl, where counsel for the adoptive couple failed to properly notify the tribe at the inception of the adoption process, and Alexandria P., where the foster couple fought against the wishes of all other parties to the case and against the best interests of Lexi.

In conclusion, ICWA stands up to scrutiny. Because of the treaty tradition, federal statutes like ICWA, and modern tribal governance, 21st century American Indian people know who they are and where they come from. Modern tribal governance is a triumph of the rule of law over years and years of American greed and bigotry. Indian tribes exist to preserve their homelands, including Anishinaabeki, allowing contemporary Indian people to access sacred sites and to know where their ancestors are buried. Indian tribes encourage their people to learn their languages, including Anishinaabemowin, and cultures. Indian children are learning their histories and languages, rather than being delivered to assimilationist boarding schools or shipped out to non-Indian families. Anishinaabe children are learning mino-bimaadiwin, the principle holding that all beings are connected and that actions of people have consequences on all. And because tribes are working to protect children, rather than treat them as cogs in a state bureaucratic hell or chattel to be bartered through the private adoption market, Indian children have a place to turn for help. Tribal law – inaakonigewin – speaks for itself.

I don’t want to detain readers much longer debating the ongoing Lexi case or the Baby Veronica case, because I want to get to Walter Olson’s point about the “best interests of the child” standard. But I’ll spend this paragraph responding briefly to Prof. Fletcher’s recent comments. He’s right: I mistakenly referred to the Choctaw Tribe of Oklahoma as the Choctaw Tribe of Mississippi. On the rest, though, he couldn’t be more wrong. Even if it were true that California law required Lexi to be sent to Utah regardless of ICWA—and it’s not—that only reinforces my earlier point that the law should be the same for kids regardless of race. If it is in Lexi’s best interests to send her to Utah instead of letting the Pages adopt her, then why not use the ordinary best interests rule that applies to kids of all other races? Instead, the California courts fashioned what they call a different kind of best-interests rule for Indian children—literally separate-but-equal for this one ethnic group—which subordinates Lexi’s best interests to “other considerations.” As to Baby Veronica, it’s also not the case, as Prof. Fletcher implies, that the dutiful father was railroaded by the adoption process before heading off to war. In fact, he was stationed at Ft. Sill, four hours from his hometown, throughout the pregnancy and was only deployed to Iraq four months after Veronica’s birth. It was only then—long after explicitly abandoning the child he’d fathered—that he sought to veto the adoption that was unquestionably in Veronica’s individual best interests. If facts matter, there’s no excuse for disregarding these.

But Prof. Fletcher is right that all such cases involve complex facts. It’s a cliché, but true, that unhappy families are all unhappy in their own ways. All the law can hope to do is set general standards to protect the best interests of the children whose fates—through no fault of their own—turn on the acts or omissions of the adults in their lives. In seeking to protect them, the law has long employed the rule of the “best interest of the child,” an ancient principle that has “exist[ed] from time immemorial and has become the bedrock of our state custody statutory law.” That rule, as Justice Benjamin Cardozo said, requires judges to place themselves “in the position of a ‘wise affectionate and careful parent’ and make provision for the child accordingly.”

The key to the best-interests test is that it’s inherently individualized. It focuses on the needs and rights of this particular child in his or her specific circumstances. In Lexi’s home state of California, the best interests test is actually written into the statutes, which require courts to consider the child’s individual situation. And the California Supreme Court has invalidated rules that imposed blanket presumptions about child welfare rather than focusing on specific circumstances. In a 1992 case, it struck down a law that let birth mothers and their husbands object to adoptions, but that didn’t let unmarried fathers do so. This was irrational, the court said, because the state could not simply presume that “a child is inherently better served by adoptive parents than by a single, biological father.” Such a crude, one-size-fits-all presumption “bears no substantial relationship to protecting the well-being of children.”

That ruling paralleled a 1972 U.S. Supreme Court decision that struck down an Illinois law under which children of unmarried parents were taken into state custody upon the death of the mother, without proof of neglect on the father’s part. “It may be…that most unmarried fathers are unsuitable and neglectful parents,” the Court noted, “[b]ut all unmarried fathers are not in this category,” and a father should have a genuine opportunity to make his case based on his individual circumstances. “Procedure by presumption is always cheaper and easier than individualized determination,” but when a legal presumption “explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child.”

ICWA runs in the opposite direction. It imposes a single, blanket presumption—which can only be overcome if there’s “good cause”—that it’s in a child’s best interest to be placed with “Indian families” solely on the basis of that child’s DNA. And the Bureau of Indian Affairs has declared that “[t]he good cause determination does not include an independent consideration of the best interest of the Indian child because [ICWA’s] preferences reflect the best interests of an Indian child in light of the purposes of the Act.” Some courts have been more explicit. The Montana Supreme Court has declared it “improper” to consider “the best interests of the child” in ICWA cases because “ICWA expresses the presumption that it is in an Indian child’s best interests to be placed in conformance with the preferences.” The Texas Court of Appeals has ruled that using the best interest standard in ICWA cases “defeats the [law’s] very purpose,” because it “allows Anglo cultural biases into the picture.”

This is absurd. Everyone, including children, has a constitutional right to an individualized determination of his or her case, without having a judge tilt the scales because of that person’s ethnic ancestry. Yet in the name of “helping,” courts today routinely ignore this right on the theory that an individualized assessment of a child’s particular needs is an “Anglo cultural bias.” That boggles the mind.

Still, Walter Olson has a point that the best interests rule can be dangerously subjective. Several justices expressed that concern in Troxel v. Granville (2000), when they struck down a Washington State law that allowed third parties to petition a judge for visitation rights even against the wishes of parents. The Court ruled this invalid because parental rights, being fundamental rights, can only be infringed for extraordinarily important reasons. Something more than “best interests” was therefore required. Worse, Washington courts seemed to be applying a presumption against parental choices: “In effect, the judge placed on…the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters.”

Yet here, too, ICWA fails the test. The Act gives tribal governments power over foster care and adoption decisions that override the wishes of parents—as the Holyfield and Baby Veronica cases demonstrate. It presumes against an individualized consideration of a child’s circumstances, and requires prospective adoptive parents to meet the demanding “good cause” standard. And it does this not on the basis of any “best interests” determination at all—which, however subjective it might be, is at least focused on a child’s unique needs—but solely on the basis of the child’s biological ancestry.

The best interest standard could stand greater clarification, as could nearly all our laws—keeping in mind that no child protection system will be perfect. But the rules should not make it prohibitively difficult to rescue children from abuse or neglect. In Santosky v. Kramer (1982), the Court held that the relaxed “preponderance of the evidence” standard was too loose, and, like the standard in Troxel, risked too many false positives. But the Court also refused to adopt the highest evidentiary standard, “beyond a reasonable doubt,” because such a stringent rule might “erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.” ICWA, of course, adopts an even more stringent standard, requiring not just “beyond a reasonable doubt,” but also testimony from expert witnesses that a child faces imminent, severe injury. That rule is so demanding that it creates many false negatives.

There’s no easy answer to that dilemma—except that ICWA’s race-based, one-size-fits-all answer is plainly wrong.

If there’s one thing history teaches us, it’s that when Congress imposes a “presumption” about what’s in the best interests of all Indians, on account of their race, tragedies aren’t long to follow. It’s past time we stopped focusing on genetics, and concentrated our attention on protecting the best interests of all children as individuals.

 

Tribal sovereignty as we know it today is an extraordinarily complicated idea, one that’s hard to discuss without involving the whole complex mass of Indian law. Sovereignty itself isn’t a Native American idea, but is rooted in Roman imperial and Christian monarchical tradition, as corrected by the discoveries of the seventeenth century classical liberals. Today, tribal sovereignty is best understood as American law’s effort to account for tribes’ less formal social and political systems—an effort that has often distorted or completely overwhelmed the original traditions. Efforts to map the limits of tribal sovereignty today seem only to cause more confusion.

For our purposes, only two points are essential: first, since at least 1924, all American Indians have been citizens of the United States, entitled to the same legal protections all other Americans enjoy. Second, as James Madison noted, sovereignty is legitimate only when it respects the rights of the individual: “the Sovereignty of the Society as vested in & exerciseable by the majority, may do any thing that could be rightfully done, by the unanimous concurrence of the members,” he wrote, “the reserved rights of individuals…being beyond the legitimate reach of Sovereignty.” Whatever the legitimate interests of tribal governments, those governments—and federal and state governments—are morally and legally obliged to respect the natural and civil rights of tribal citizens.

The Indian Child Welfare Act fails that test. It does much more than protect the lawful authority of tribal governments, and it reaches far beyond Indian country. Its separate system of rules is triggered, not by membership in a tribe, but by eligibility for membership, which is a biological, not political or cultural status, which means it conflicts with the principle that “separate but equal” has no place in our law. And it gives tribal governments power over “Indian children” wherever they reside—a power not even states enjoy. Nevada couldn’t transfer a foster care case from Kentucky courts to its own courts simply because the child’s great-grandfather was born in Vegas—that would violate the “minimum contacts” rule mandated by the Fourteenth Amendment. But ICWA lets tribal governments do just this in child custody cases anywhere in the country based solely on a child’s DNA—in violation of due process.

Tribes, of course, have the right to determine their own membership, just as the Democratic Party, or the Gulf Shipbuilding Corporation, or the Tennessee Secondary School Athletic Association do. But when private decisions cause government to treat people differently, that raises constitutional problems—and requires constitutional protections.

Take the Democratic Party, for instance. It’s a private organization based on political affiliation, and that means it can decide who may and may not join. Since the Constitution doesn’t bar private groups from discriminating on the basis of race, the Party could even exclude black people from picking nominees, if it wanted, and there was a time when it did so. But in the 1940s, when just about all southerners were Democrats, the outcome of the Party’s primary election—a private action—would basically decide the general election, a state action. And that raised constitutional problems. So-called “White Primaries” were an effective way of disenfranchising black voters. And in Smith v. Allwright, the Supreme Court held them invalid. The state was so closely connected with the primary election process that the party was essentially “an agency of the State.” Thus “[w]hen primaries become a part of the machinery for choosing officials, state and national, as they have here, the same [constitutional rules]…should be applied to the primary as are applied to the general election.”

Or consider the Gulf Corporation. It’s a private company, and thus not bound by the same constitutional rules that limit what government entities can do. But in 1946, the Supreme Court ruled that those constitutional limits did apply to the town of Chickasaw, Alabama—a “company town” owned entirely by the corporation. Gulf didn’t allow people to distribute leaflets without a permit, and arrested a Jehovah’s Witness who broke the rule, charging her with trespassing. The land was private property, it said, which meant the First Amendment didn’t apply. The Supreme Court disagreed. “[T]he town of Chickasaw does not function differently from any other town,” it ruled. “The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees.”

Or consider the Tennessee Secondary School Athletic Association. In 2001, the Supreme Court ruled that it, too, was a government entity, bound to respect constitutional rules, even though it was organized as a non-profit membership corporation. “The nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings,” the Court ruled. So there, too, constitutional protections applied.

Obviously “Indian tribes…are a good deal more than ‘private, voluntary organizations’”—they’re sovereign governments. But that’s all the more reason why constitutional rules must apply. And that’s why the distinction I noted earlier, between tribal membership (a matter of tribal law) and “Indian child” status under ICWA (a federal law matter) is so important. Whatever authority tribes have to establish their own membership criteria, federal and state governments are bound by the constitutional prohibition against racial discrimination and requirement of due process. Jurisdiction transfer, placement preferences, standards of evidence, and other provisions of ICWA are imposed not by tribal courts—to which ICWA does not apply—but by state courts.

Imagine a law mandating that cases involving defendants with Jewish ancestry must be decided under different rules of evidence, or letting the Japanese government intervene in cases involving plaintiffs whose great grandparents emigrated from Japan!

When a tribe hales a child and her would-be adoptive parents before its own courts, just because of the child’s biological ancestry—because her parent was a tribal member and she satisfies the tribe’s blood quantum—it’s doing much more than choosing its own citizens. It’s setting in motion a legal process that affects the rights and liabilities of American citizens. It won’t do to shrug off the constitutional ban on discrimination, and say that tribes have the right to choose their own members. Yes, they do—just as the Democratic Party, Gulf Inc., and school athletic associations do. But when those choices involve the rights of U.S. citizens, constitutional protections must apply.

This shouldn’t be regarded as an assault on legitimate tribal interests. Sovereignty, as I said, is bound to respect individual rights. But this is a point where our differences may be intractable. In his book American Indians and The Law, Prof. N. Bruce Duthu dismisses concerns about ICWA by saying that they’re motivated by ignorance or hostility toward tribal sovereignty, and approvingly quotes Prof. Steven Curry: “To be citizens on a par with others is to be de facto whites, to engage in a process not of their making, and so to have indigenous voices silenced and replaced by voices borrowed from the other.” To insist that individual rights trump government sovereignty, he writes, is to “impose[] the Western legal theory of ‘consent of the governed.’”

Such complaints are at once senseless, intolerable, and ironic. They’re senseless because the idea of sovereignty is itself a “Western legal theory,” so deploying that concept to contradict its underpinnings is a fallacy. They’re intolerable because the proposition that all men are created equal, with inalienable rights all governments must respect, is a universal proposition applicable to all people at all times, everywhere. To say this principle is only for non-Indians—that being equal citizens means “borrowing voices from the other”—is racist.

And it’s ironic because western political philosophy first learned the idea of universal human rights from its interaction with Native Americans in the western hemisphere. It was in 1550 that the Spanish priest Bartholomé de Las Casas raised powerful objections to the enslavement and brutality his government was meting out to Native Americans, arguing that “there is no natural difference in the creation of men”—and thus no basis for depriving Indians of the legal protections that applied to non-Indians. Alas, his arguments and those of others who followed in his footsteps were ignored, and Native Americans were relegated to second-class status by governments that insisted that they were a race apart, not entitled to the same constitutional protections afforded to others. Today, on the principle that all Americans of Native descent deserve equal protection, there can be no compromise.

“We never have objected to become citizens of the United States and to conform to her laws,” said Cherokee chief John Ross in 1836, “but…we have required the protection and the privileges of her laws to accompany that conformity on our part.” That protection has too long been denied. If tribal sovereignty is worth preserving, so are the constitutional rights of America’s Native citizens—particularly children—and tribal governments can have no just complaint against efforts to protect the rights that, as I’ve shown, ICWA too often overrides.

American Indian tribes and the communities and polities they cultivate serve Indian children and families in ways that are respectful and culturally competent. Each of the 567 federally recognized Indian tribes have established their own public policies and legal structures, but perhaps their greatest advantage over state systems is that they have the time to deal with each family individually and with dignity.

That’s a fairly recent development. For most of American history, Indian children have been pawns of the power politics of adults. For opponents of tribal self-determination and the Indian Child Welfare Act, they still are.

 

From War Hostages to Boarding Schools

Outsiders long have sought to strip Indian tribes of their children. In the first protracted war between Indian tribes and the United States, fought in the years immediately following the end of the Revolution, American leaders explicitly ordered their military leaders to kidnap Indian children and hold them as hostages. Kidnapping Indian children and holding them as hostages was, by then, a centuries old military strategy used by European powers since at least the war of extermination against the Pequot Nation in the seventeenth century.

In times of peace, outsiders continued the strategy of stripping Indian children from their families and homelands. Federal Indian affairs officials obligated by treaty to educate Indian children funneled federal funds to religious organizations, entities that actively lobbied to receive the funds, to establish Indian schools. At first, the churches set up the schools inside of reservation communities as day schools, but they were dissatisfied with the influence of Indian families on their children. The churches quickly transitioned to off-reservation boarding schools to separate Indian children from their families and their cultures. These church-based Indian boarding schools, which operated loosely from the mid-nineteenth century to the mid-twentieth century, notoriously punished Indian children for speaking their languages, cut Indian children’s hair and dressed the in uniforms, and taught them menial labor skills. President Ulysses Grant’s Peace Policy introduced the militarization of Indian boarding schools. Like the church schools, these military boarding schools punished Indian children for being Indian. These were compulsory schools. Federal officials could withhold rations from Indians if they didn’t turn over children. And they could kidnap children, placing them in tiny handcuffs to drag them to school. Indian tribes or parents that attempted to keep their children at home could be severely punished. Proponents of Indian boarding schools were reformers, people trying to save Indians from themselves.

The legacy of these schools may never be completely known, but there are shocking elements. The Saginaw Chippewa Indian Tribe’s investigation of the grounds around the Mount Pleasant Indian Boarding School, closed in 1934, uncovered dozens of bodies of Indian children buried in unmarked graves. The tribe’s investigation confirmed what has been shown to be true in so many other places like Carlisle, Haskell, and Holy Childhood in Harbor Springs, Michigan – Indian boarding schoolyards were also mass graveyards of Indian children, buried in unmarked graves as they died from sickness or murder at school.

The stated philosophy behind these tactics was that Indian people were savages that needed to be civilized. The church schools hoped to convert Indian children from what they called paganism or heathenism to Christianity. The military schools wanted to the kill the Indian to save the man. Commentators expressly and continuously celebrated a perceived superiority of the non-Indian culture of Christianity over Indian cultures, which they argued were doomed to become extinct.

 

From Emergency Removal to Adoption

In the mid-twentieth century, as the federal funding for Indian boarding schools waned, federal dollars for state child welfare bureaucracies began to rise. The states’ paradigm shifted away from the federal policy of housing all Indian children in schools to identifying Indian children in need. Some state agencies concluded that any Indian child living in Indian country was, by definition, an Indian child in need. Once again, there were kidnappings. The private adoption market was also on the rise. And the churches didn’t go away. They transitioned into child welfare service providers and private adoption providers.

State workers and adoption agencies were reformers, trying to save Indians once again. They saw Indians living in poverty, and thought Indian children should be saved from poverty. Their solution was removal from their families, and adoption to off-reservation non-Indian families. State governments and their private market adoption partners removed “an alarmingly high percentage” of all Indian children in the middle decades of the twentieth century and shipped them off to non-Indian families. States and adoption agencies were not doing this to any other group of people, just Indians. Other families went through removals of their children because of abuse and neglect, but states and their adoption industry partners explicitly justified removals of Indian children by reference to their status as Indians.

Meanwhile, federal Indian policy shifted dramatically to tribal self-determination. Indian tribal governments that had been under the thumb of federal bureaucrats or simply ignored by the United States began to restore their government structures. The Indian Child Welfare Act of 1978 continued federal support of tribal self-governance and attempts to stanch the wholesale removal of Indian children. Over four decades later, ICWA is a work in progress. State appellate courts and legislatures in general take ICWA and tribal self-determination seriously, a massive sea change from the 1970s, though compliance with ICWA in state trial courts and in state agencies is poor.

 

What Tribal Self-Determination Means in Child Welfare

Tribal self-determination means that Indian tribes can and do make their own choices. Technical assistance providers from entities like the National Council of Juvenile and Family Court Judges have observed state and tribal court child welfare matters and reviewed their court records. These observers note that data collection from state court records is fraught with error – the records are rarely complete, for example, one likely cannot tell from state court records who was present in the courtroom for a hearing. State court child welfare hearings might last for only a few minutes. Most of the work in state court is done between the lawyers, social workers, and the judge, on the spot. Parents, children, and foster parents usually have no understanding of the proceedings. Conversely, at tribes like Pokagon Band of Potawatomi Indians, these same outside observers are shocked to see hearings that may last hours. The judge addresses the parties by name, makes eye contact, and holds both the lawyers and the families accountable. Hearings continue until each and every stakeholder completely understands the process and their obligations going forward. Even before the hearing, the stakeholders and the judge meet informally for an hour or two to brainstorm ideas on how best to help children in need.

Both states and tribes say they take the best interests of the child seriously, but the tribal process is real. Generally most tribal dockets are much smaller than state dockets. If they don’t receive Title IV-E funding (like Pokagon, for example), they are not bound by the rather draconian, federally imposed timelines state courts are. For the most part, the state court judges are deeply frustrated by a process dictated by budgets and timelines rather than by what is best for families. Conversely, tribal judges are excited and empowered to use different approaches to child welfare. Their biggest frustration is when they are told they have to conform to the standards that have broken state systems in order to access funding.

 

About Those Calls for More Foster Care

Reformers are still trying to save Indian children by taking them away from Indian families and tribes. Mr. Sandefur would rather force Indian children into state court systems by undoing ICWA, perhaps because they can be more easily plucked from state systems by the private adoption market. There have even been calls to greatly expand the number of Indian children in foster care. Literally no ethical person seeks to put more children in foster care. Studies show what should be inherently understood—plucking children out of a community they know and putting them in stranger foster care is actively harmful to kids (there’s a reason Casey Family Programs is putting a billion dollars into reducing the number of kids in foster care). Eighty percent of child welfare removals are due to neglect. Our children do deserve better: better services, better wrap around care, a better understanding of the mental health issues and chemical dependency that plagues their parents. They don’t deserve to be taken from everything familiar—their neighborhood, schools, and extended family—because of system failures in our society.

Imagine a child welfare proceeding where the judge meets with the parties for two hours before the hearing to engage in problem solving and to brainstorm creative ideas to best serve the child, followed by a formal hearing that may last two or more hours. Compare that to a state court hearing that lasts mere minutes, and where there are systematic financial pressures for “permanency,” in other words, to place children in foster care, terminate parental rights quickly, and adopt them out. It’s not even a comparison.

Advocacy around the Indian Child Welfare Act reveals disparate perspectives. At this juncture, I’d like to turn from our differing views of particular cases toward conceptual issues, in the hopes of advancing mutual understanding, if not agreement.

In ICWA, Congress declared that it is the policy of the nation “to protect the best interests of Indian children” and “to promote the stability and security of Indian tribes and families.” Additional provisions recognize the “unique values of Indian culture” and the role of “Indian tribes” in child and family service programs.[1] In my view, ICWA properly protects both the best interests of children and tribal sovereignty; it reflects principles of constitutional law and human rights, as well as current philosophies and best practices with respect to individual and collective rights.

The essays of Mr. Sandefur and Mr. Olson appear to critique ICWA at its core; they do not like the fact that ICWA makes a child’s membership in a federally recognized Indian tribe relevant to child welfare proceedings. They seem to believe that if Indian children were free from ICWA’s provisions (e.g., notice to parents and tribes, active efforts toward reunification, opportunities for tribal court jurisdiction, and preferences for placements with extended families and tribal members), they would do better in the child welfare system. Underlying these points appears to be a deep concern for individual rights, which the critics believe to be best advanced through formal equality before the law.

From my work with Indian tribes, I see things differently. Indian children have not only a right to safety and security, health and wellbeing, family and home, but also to a tribal identity, culture, and citizenship. These are aspects of the child’s individual rights that are uniquely protected by the ways in which tribal and federal law work together through ICWA. Federal law guarantees the right of tribes to make their own laws and be governed by them. Among other things, tribes determine membership, domestic relations, and inheritance, thereby ensuring that individuals will be able to participate in tribal life and enjoy the benefits thereof. An approach of formal equality that would treat the Indian child just like any other child, without reference to tribal membership or tribal sovereignty, would deny Indian children fundamental rights that only the tribe can protect.

Thus I would argue that we should: (1) acknowledge that tribes are sovereign governments with the right to make their own laws in various realms including child welfare; (2) understand that ICWA’s affirmation of tribal sovereignty is one of the mechanisms by which the law promotes the best interests of Indian children; and (3) support collaborative efforts among state and tribal governments, and other parties, toward compliance with ICWA.

We clearly have a long way to go toward these goals. As I write, opposition to ICWA occurs in the form of lawsuits based on specious claims of race discrimination, fraudulent adoption practices skirting the law’s notification provisions, and media events exploiting small children as pawns in the cause. I believe these tactics do nothing to nurture the children at the heart of the struggle.

How do we get from our trenchant disagreement to mutual respect and perhaps even constructive collaboration? As a starting point, I offer the very first treaty between Indians and white settlers as a potential model. This essay then examines tribal worldviews and Indian history, constitutional law and human rights, political theory and local practice, toward what I see as the way forward in Indian child welfare.

 

An Historic Model with Contemporary Applications

In 1613, American Indians and Europeans made what is thought to be the first treaty between them. Meeting in present-day New York, representatives of the Haudenosaunee (or Iroquois) and Dutch governments agreed to three principles, namely, friendship, peace between peoples, and living in parallel forever.[2]

The Two-Row Wampum.

 

The Dutch recorded the agreement on paper with three silver chains.[3] According to tradition, iron chains would not do because iron rusts and breaks over time. Silver, by contrast, could be polished to a shine when treaty partners would meet again. These promises were eternal and would not break. The Haudenosaunee and the Dutch agreed to call this the Silver Covenant Chain of Friendship.

The Indians recorded the agreement in a belt of white and purple shells. “The belt has two purple rows running alongside each other representing two boats. One boat is the canoe with the Haudenosaunee way of life, laws, and people. The other is the Dutch ship with their laws, religion, and people in it. The boats will travel side by side down the river of life. Each nation will respect the ways of each other and will not interfere with the other.” The Haudenosaunee and Dutch agreed to call this the Two Row Wampum.

Why is the Two Row Wampum relevant now? What does it have to do with ICWA?

Today, the United States stands in the shoes of the European nations that negotiated historic treaties with Indian tribes. The Two Row Wampum is “a living treaty, a way that they have established for their people to live together in peace; that each nation will respect the ways of the other as they meet to discuss solutions to the issues that come before them.”

The Two Row Wampum is potentially helpful in a case like this where we all have to live under the same law but we have different beliefs about what is right. It offers a process (discussion of the issues), structure (parallel existence), and normative view (peace and mutual respect) for relationships between Indians and others. In the best case scenario, the Two Row Wampum could inspire a more peaceful, constructive approach to Indian child welfare that respects differences in worldview and promotes respect among peoples.

 

Worldview

In ICWA, Congress committed itself to protecting both “the best interests of Indian children” and “the stability and security of Indian tribes and families.” The law recognizes both the “unique values of Indian culture” and the role of “Indian tribes” in child and family service programs.[4]

Mr. Sandefur appears to believe that ICWA’s goals – (1) the protection of Indian children and (2) the protection of Indian tribes and families – are at odds with one another. To put it another way, he seems to argue that the protection of Indian children should trump the protection of Indian families and tribes. Mr. Olson largely concurs, though he argues that Indian parents also have legitimate individual rights in parenting their children.

In Mr. Sandefur’s view, Indian children are entitled to be treated like all other children, without reference to their membership in an Indian tribe. This is because he sees membership in an Indian tribe as an ethnic or racial heritage that should not keep Indian children from enjoying the full panoply of rights that all American citizens hold as individuals. Mr. Olson is “shocked at how little individual rights count for in the ICWA scheme.”

What is missing, I think, from these critiques is an appreciation for the way that the individual rights and personal identities of children and parents are valued in the context of tribal cultures, as well as how ICWA effectuates those values.                   

Mr. Sandefur claims, for example, that the Indian child of attenuated bloodline may not have any cultural connections, leaving only what he sees as a racial link to justify ICWA’s application. These claims appear to be based on his understanding of Indian identity as based on blood quantum, genetics, race, and ethnicity. Mr. Olson complains that ICWA applies to people who have never lived on a reservation. In my view, these critiques are based on are western constructs that infiltrated, but never really colonized, Indian Country. 

Consider the affiliations that do have meaning in tribal communities. In some communities, a child is born into a clan. For Cherokees, the clans are Wolf, Bird, Paint, Deer, Long Hair, Wild Potato, and Blue. Navajo clans are too numerous to list here. For other tribes, it’s societies, towns, villages, communities. It may be a single mom and her son in rural Wyoming or a stepfather and his daughter in New York City. These individuals may indeed live far from reservations (and of course not all tribes have reservations), in part because of the forced relocations imposed on Indians over hundreds of years. But these are Indian children and parents, related to Indian families and tribes, through religion and culture, politics and law.

The Indian child is not a blank slate. She is never a fraction of anything. She is Navajo or Hopi, Odawa or Cherokee, born into a fabric of spiritual life, a lineage of cultural practice, a place of individual power and of collective responsibility to the whole. One or two or three generations later — even if her mother, grandmother, and great-grandmother were themselves relocated or adopted — today the Indian child is protected in her personal identity, family life, and tribal citizenship by ICWA.[5]

Make no mistake: tribal cultures contain powerful expressions of individual rights.[6] Among the Hopi and Zuni, for example, “there is a strong belief that adult individuals are ultimately free to act as they see fit and are not to be judged by other humans for their actions. In Hopi, this respect for individual freedom is expressed by the phrase, ‘Pi um pi’ or ‘it’s up to you.’” And yet these individual rights are understood and experienced in the context of collective rights. Individual and community are balanced. And so a respect for individualism exists alongside the “obligations and duties toward one’s kin … necessary for the proper order of Hopi or Zuni society.” The Navajo tribe holds a core value that “no one and no institution has the privilege to interfere with individual action unless it causes an injury to another or the group.” Religion, speech, and parenthood are all construed in this way, to recognize individual rights in the context of collective responsibilities.

This is, in fact, the way it works in Indian Country. Whereas some strands of western European philosophy prioritize the individual man in his quest for rational autonomy over body, home, and property, American Indian worldviews typically value each individual in the embrace of family, tribe, and landscape, all maintaining an interdependent relationship with the natural world through prayer and ritual, history and relationship. These traditional values are expressed in tribal constitutions and codes, as well as the Indian Civil Rights Act of 1968, a federal statute that ensures tribal courts will respect individual rights, including speech, equality, and due process, while also fostering collective rights to determine membership, practice religion, exercise jurisdiction.[7]

It is unfortunate if ICWA’s critics have not seen the beauty and resilience of Indian Country. To spend time at one of the Southwestern pueblo feasts, or Oklahoma stomp grounds, or New England powwows is to experience the sheer joy of a culture and a people who have survived genocide. Indian people may be poor (although increasingly they are not). They may not have Ph.D.’s in child psychology (although increasingly they do). But to live in an Indian community is to be connected to family, land, tradition, and culture. It is to grow up with one’s personal identity, autonomy, and birthright as an Indian person. These are individual rights just as surely as any others.

There is also pain and heartache in Indian Country. Mssrs. Sandefur and Olson are correct that there are Indian children – in cities, towns, and reservations around the country – suffering from abuse and neglect, in families that have withered from generations of poverty and dislocation caused by the misguided policies described above. Tribal government is uniquely situated to have expertise on these problems and uniquely able to bring tribal culture to bear on solutions for Indian children and families. Tribes offer culturally sensitive foster care and adoptive family services, health care for pregnant women and children, and education from pre-school through university and graduate studies. Tribal courts have the time, expertise, and resources to address child welfare in ways that recognize the kinship bonds, the issues of language, religion, and culture, and the economic realities of Indian families. Urban Indian organizations have cultural revitalization programs to keep kids in school while addressing their vulnerability to gangs and human trafficking. Domestic violence, substance abuse, and suicide prevention initiatives across Indian Country are designed in significant part to strengthen and heal tribal families and allow parents and other caregivers to recover their roles in raising children.

These stories, perhaps, not do not capture headlines in the ways that certain cases have. Nevertheless, they are stories of the ways in which Indian tribes protect the welfare of children, and how in some cases they bring special resources and perspectives that might be not be available to state court judges, child and family service workers, and so on. Why would we want to deny Indian children the benefit of these programs by diminishing the force and effect of ICWA?

 

Individual v. Collective Rights: Or How about Legal Pluralism Instead?

The current assault on ICWA, while poorly informed, does not come as a huge surprise. History suggests that each time Indian tribes recover any shred of collective self-determination, reformers intervene to say that now is the time for individual rights, American style, in Indian Country.

We’ve heard these arguments before: Indians would be much better off if their rights to casino gaming were abrogated, if their land could be sold without restriction, and if their children could be adopted on the open market. If only Indians would let go of their culture, their lands, their language, religion, and children, they would be free!

And we know how the story unfolds: These arguments catch the ear of policy makers, and legal reform totally divorced from the collective nature of Indian culture is imposed on Indian people, against their wishes but somehow for their own benefit. And then, when push comes to shove, the courts ultimately recognize only a watered down version of individual rights. Individually and collectively, Indian people suffer.

Consider religion. In the 19th century, the federal government outlawed Indian religions, such as the sun dance, and enforced these laws by putting Indians in jail and denying them food. In 1890, the United States army ratcheted up the punishment, and shot and killed 200 Lakota people, as they prayed, in the Ghost Dance. The Indian Commissioner explained he “had no intention of interfering with the Indian’s personal liberty.” These measures were “meant to remove a badge of servitude to savage ways and traditions which are effectual barriers to the uplifting of the race.”[8] One hundred years later, in 1988 and 1990, the Supreme Could held the federal government could destroy Indian sacred sites[9] and state governments could outlaw Indian sacraments[10] without violating the First Amendment. These decisions are the law of the land to this very day. Is this how we envision religious freedom in the United States?

Consider land. After the policies of Indian removal and reservations failed to destroy Indian culture altogether, the United States, under pressure from individual states and white settlers, announced the “allotment” of tribal lands. As President Roosevelt said, allotment was to act as a “mighty pulverizing machine intended to break up the tribal mass.”[11] It was pitched as a policy that would “free” Indians by “giving” them the “right” to sell their property and join mainstream culture. What really happened was that Indians lost 90 million acres of land between 1887 and 1934.[12] The Supreme Court held in 1903 that these losses were not reviewable by the courts.[13] Then in 1955, the Court held that Alaska – yes just about all of the Native land in Alaska, to which title had never been extinguished and on which Native people were still living – was not compensable under the 5th Amendment.[14] These decisions, too, remain the law of the land. Is this how we envision property rights in the United States?

And consider children. The worst, saddest, most tragic example of the imposition of a radical model of individual “rights” on Indian communities. As I wrote in my previous essay, the federal and state governments, as well as adoption agencies, churches, and schools, all have a very long history of removing Indians from their families, for their own benefit. The prevailing policy from the late 1800’s until recently, or maybe even through today, was to “Kill the Indian and Save the Man.” In the decade when I was born, fully 1 out of every 4 Indian children was removed from his or her family. Congress found that many such removals were out of cultural ignorance, not because of neglect or abuse. It also found that the ramifications for individual Indian children were horrible. My earlier essay cited to the statistics about the psychological harms, drug abuse, and suicide rates of Indian adoptees during this period, and the traumatic effects on parents and siblings. Is this how we envision family rights in the United States?

ICWA presents a better way forward. It is a classic legislative compromise. The law respects the individual and collective rights of Indian children, parents, and tribes. It respects tribal and state court jurisdiction. It applies equally to mothers and fathers. ICWA respects the best interests of children and tribal self-determination. And so on.

This is not a radical view of the world, either in the mutual recognition of individual and collective rights, or in the concept that tribes maintain legal systems differing in some ways from the federal and state law systems around them. Indeed, the U.S. Constitution, alongside its very robust commitment to individual rights, also recognizes tribal governments in the Commerce and Treaty Clauses. As “domestic dependent nations,” whose existence pre-dates the formation of the United States, and whose political relationship with the federal government, through treaties and the Constitution, is a part of our nation’s political structure, Indian tribes are somewhat “exceptional” entities in American public law.[15]

But this situation is not exceptional when we cast our gaze around the globe. The United Nations Declaration on the Rights of Indigenous Peoples, endorsed by the United States and 143 other nations, recognizes both the individual and collective rights of indigenous peoples, including children’s rights to family and identity, and tribes’ rights to self-government and self-determination.[16] All in all, our approach to Indian Affairs, informed by constitutional law and human rights, is not unlike what the political philosopher John Rawls called “reasonable pluralism.”[17] This is a practice in which nations of the world respect “peoples” within their borders, including peoples with “reasonable” morals, religion, and philosophies, even if their laws or practices depart from the liberal tradition in certain ways. As societies grow more complex, reasonable pluralism is one way to manage differences within nations, engendering mutual respect and self-determination, rather than formal hegemony or forced assimilation.[18]

To be clear, this is not “separate but equal” as applied to Indians. As a formal matter, all of the essayists have acknowledged that the status of Indian tribes is political, and not racial, pursuant to the Constitution and many Supreme Court decisions.[19] When Congress legislates in Indian Affairs, as it has through an entire Title of the United States Code, these laws are subject not to strict scrutiny as they would be in the case of race-based legislation, but rather “rational basis” review to determine whether Congress has rationally upheld its trust duties to tribes. More practically, the current federal policy of “tribal self-determination” requires that federal Indian laws must be made in consultation with tribal governments, a practice endorsed by Republicans and Democrats alike. Congress consulted with tribes when it enacted ICWA and the Bureau of Indian Affairs did the same when it recently promulgated ICWA regulations. This is not about a regime imposed on Indians without their participation; it is about complying with a law that tribal governments lobbied for and are now trying to implement with federal and state cooperation.

 

Limiting Principles

Finally, the law contains several limiting principles that, if understood, should assuage some of the concerns about its reach and its protection for individual rights. These limits are found in ICWA itself as well as in the broader body of federal Indian law.

First and foremost, whatever the merits of arguments about transracial adoption, it is quite clear that ICWA does not open the floodgates to claims by racial minorities. Pursuant to Section 1903, the law applies only to “federally recognized tribes,” meaning those tribes that have a political relationship with the United States through treaties and statutes. The Supreme Court has clearly held that legislation based on Indian status is political and not racial.[20] ICWA is not about disparate treatment based on race. Indian tribes are distinguishable from other minority groups because they are governments that pre-date the United States, maintain a formal political relationship with the United States through treaties and statutes, and exercise inherent jurisdiction over reserved territories.

Additionally, while critics have suggested that ICWA’s coverage is so broad such that anyone with a tiny smidgen of Indian blood, a faint genetic marker, might fall under its net, that’s not right. As I suggested above, most Indian people do not typically equate blood or genetics with cultural or political affiliation. The attacks based on blood quantum or generational distance are truly meaningless from a tribal perspective.

Even more pragmatically, ICWA’s definition of “Indian child” is significantly limited. Section 1903 defines an “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” To put this in perspective, the last census revealed 800,000 people with Cherokee heritage, but at most 325,000 are enrolled members of one of the three Cherokee tribes – and of this an even smaller number of Cherokees are minor children who qualify as an “Indian child.” Like all laws, ICWA might appear to be overbroad or under inclusive at the margins, but it clearly applies to a limited subset of people, determined by well-established practices determining membership in a federally recognized tribe. Stated another way, ICWA does not apply to all children who may have some Indian heritage; it is much more limited than that.

Jurisdiction—or the right to have a child welfare case heard in tribal court—is similarly limited under ICWA. Under basic principles of federal Indian law, children and families who live on the reservation are subject to the jurisdiction of the tribal court, not the state. For children and families who live off the reservation, ICWA gives the tribe and the state concurrent jurisdiction over child welfare matters. Pursuant to Section 1911, either parent can veto a transfer to tribal court, and the state court can also find good cause to deny such transfers. In short, a finding that ICWA applies to a certain cases does not necessarily mean the family will end up in tribal court.

With respect to individual rights, ICWA’s Section 1914 gives an Indian child the right to bring his or her own lawsuit to invalidate a foster care placement or parental rights termination on grounds that it was unlawful. As lawyers for Indian children like to point out, this is a provision that can help to assert the child’s own voice, identity, and interests vis à vis parents, tribes, and others. In this and other provisions, ICWA has built in protections for the individual rights of children (and parents for that matter).

With respect to the critique that ICWA creates a second-tier legal regime for Indians, note that Section 1922 provides that in instances where state law offers higher protections to parents of Indian children, the state law must apply. Generally, however, most state laws provide lower protections to those parents, which is one reason ICWA is considered a gold standard in child welfare. In this regard, ICWA stimulates a race to the top, encouraging states and tribes to protect the individual rights of parents.

Finally, if critics are concerned about individual rights in tribal courts they should know that the Indian Civil Rights Act of 1968 requires that all branches of tribal government recognize both individual rights, like speech, property, and due process, while also protecting the tribe’s rights to determine membership, proscribe inheritance rules, and assert jurisdiction. As in the aftermath of Holyfield v. Mississippi Choctaw, tribal courts are empowered to affirm placements with non-Indians when they determine it to be in the best interests of the child.[21] To state this most clearly, ICWA does not require courts to place Indian children with Indian families if the best interests determination dictates otherwise.

 

An Invitation

In all of these ways, ICWA effectuates an eminently reasonable view of the world consistent with the Two Row Wampum in which indigenous peoples and newcomers to this continent respect one another, and offer friendship and support, without trying to steer one another’s canoe. In this spirit, I would like to invite an approach of mutual respect, non-interference, and peace into the current conversation about Indian child welfare. Here are some examples to build on.

First, the National Council of Juvenile and Family Court Judges has called on its members to comply with ICWA and the new regulations. This, in and of itself, is a major step from contestation to collaboration. Second, the organization holds trainings and produces materials regarding compliance and has started to hold observations so that judges can learn from one another. These sessions have revealed several contrasts. As Professor Fletcher’s latest essay suggests, tribal courts, unlike state courts, usually gather all family members in front of them, allow children to speak (whether formally or informally, in an age appropriate way), and make sure everyone there understands the proceedings. Tribal court judges are able to craft approaches to child welfare that take into account families’ personal, economic, and religious needs. Interestingly, state judges have expressed admiration and even envy about the ways in which the tribal court judges conduct child welfare proceedings, suggesting that there is room for mutual respect and information exchange among individuals who may not be natural allies.

On the flip side, some tribal governments are working with their state counterparts on effective ways to license and regulate foster families so as to ensure child safety. Tribes have been encouraged to publish and make readily available their constitutions, codes, and decisions so that families and lawyers in their systems, whether Indian or non-Indian, will understand the relevant tribal law. Tribes and Indian organizations understand that, given the realities of urban Indian populations and the scarcity of Indian foster and adoptive placements, many children will be placed in non-Indian families. They have begun to participate in “cultural connectedness agreements,” inviting foster and adoptive families to come to Indian Country, to keep their children invested in ceremonies and language, and to know their extended Indian families.

These best practices, often produced in discussions among people who work on the frontlines of child welfare, honor the foundational principles of the child’s best interests and tribal sovereignty, and promote mutual education among states and tribes toward improving Indian child welfare.

For people who are not lawyers or family service professionals, there are still additional ways to care for Indian children. First, those who wish to become adoptive or foster parents should work only with tribes and agencies that comply with the law, including ICWA. Those who wish to support Indian children without becoming parents can consider other avenues. Locally, volunteer at tribal Head Starts, donate to scholarship programs, or buy school supplies. Nationally, look to foundations and organizations devoted to Indian children. On a personal level, individuals can learn more about the history of Indian child welfare and open their hearts toward healing, restoration, and recovery. Check out where the political candidates stand on Indian issues and visit Indian Country to get to know its people and places. Support Indian children while respecting tribal sovereignty. The invitation is open.

 

Conclusion

The legal scholar and theologian Vine Deloria, Jr., once said, in characteristically provocative fashion:

Consider the history of America closely. Never has America lost a war. When engaged in warfare the United States has always applied the principle of overkill and mercilessly stamped its opposition into the dust…. But name, if you can, the last peace the United States won. Victory yes, but this country has never made a successful peace because peace requires exchanging ideas, concepts, thoughts, and recognizing the fact that two distinct systems of life can exist together without conflict.[22]

To many in Indian Country, the current assault on ICWA feels like a war waged on tribes by targeting the most vulnerable among them. The rubric is one of concern for individual rights that seems to ignore the ways in which tribes already respect and honor both individual and collective rights. The current attacks are unfortunate because, in enacting ICWA, Congress made significant progress toward recognizing that two distinct systems of life can exist together without conflict.

Inspired by the resilience of our ancestors and hope for our children’s futures, I hope we can renew a vision for peace and healing in Indian child welfare. One river, two canoes.

 

ICWA was passed with good intentions: to combat abuses, particularly at the state level, and to protect the legitimate authority of tribal governments to decide child welfare cases on reservations. It also contains worthwhile protections, such as provisions that ensure people understand the legal documents they’re asked to sign and that require federal funding for tribal family services. But it also contains many unconstitutional and unjust provisions, including the race-based standards that, as I’ve shown, literally implement racial segregation for Native American children.

The Act—and its state-law adjuncts—need to be fixed in order to better protect Indian children. The “active efforts” requirement that forces child safety workers to return kids to the families that have abused them should also be modified. That requirement applies only to Native children; for all other kids, only “reasonable efforts” are required, and those aren’t required in cases of severe wrongdoing. The same should hold for Indian kids. The race-based preferences that mandate that foster and adoption placement be with “Indian families”—without regard for tribe!—should be ended, and children placed with families that will care for their specific needs. The different evidentiary standards that apply to cases involving Native kids as opposed to other kids should be ended—the rules should be the same for everyone, regardless of race. BIA guidelines and regulations that implement separate, race-based rules, should also be abandoned. The provisions that give tribal courts jurisdiction off reservation over children with no political or cultural affiliation with a tribe, but whose only connection to the tribe is their DNA—those provisions must be abolished, too.

The Federal Interethnic Placement Act prohibits discrimination on the basis of race in an adoption proceeding. Yet it contains a provision that explicitly exempts Indian children. That should be abolished—it should not be legal to discriminate against them in child custody proceedings. And states should be barred from implementing race-based rules, too. California, for example, following the BIA’s lead, now applies ICWA on the mere suspicion that a child is of Indian heritage, unless proven otherwise. That’s wrong.

Most importantly of all, federal and state laws should be amended to ensure that the best interests of the child shall be the highest priority in all cases, regardless of race. That means the best interests of the individual child in his or her specific case. It’s wrong for Congress to simply presume that because a child has Native DNA, his or her fate should be decided by tribal authorities.

The public and the media also need to be educated about ICWA’s many flaws, and how the Act makes it harder for child welfare agencies to protect Indian kids. Sadly, this will be a difficult battle.

Consider this recent story in the Minneapolis Star-Tribune, about an alcoholic couple whose kids have had to be repeatedly rescued from their neglect. The children, all under 10, “have cycled in and out of foster homes so often that social workers wrote ‘more than 500 days’ on court papers that indicated the length of time in foster care,” says the story. In fact, the kids have been removed from the couple at least three times thanks to their repeated bouts of drinking and neglecting their children: “The officer could smell the apartment from several doors away…. ‘Both parents were clearly intoxicated…. The entire apartment smelled like urine. Ms. Goodsky admitted that the family had been sleeping on the very dirty, food laden living room floor…the children reported that they have been missing school because they don’t have clean clothing….’”

Behavior like this would have cost most parents custody of their children—for the benefit of the children. But because these children are “Indian children” under ICWA, they have been returned time and time again to a couple who have repeatedly demonstrated their inability to care for these kids.

What’s amazing about this article is how it’s spun as a win. This time around, the article says, the parents have promised to sober up. Speaking as someone whose family has suffered greatly from alcoholism, I certainly hope they do. But the risk these children face is immense—and they face it because the system prioritizes other things over their best interests…because they’re Indian children. Maybe this family will succeed where others have failed, but what’s been done to these children in the meantime?

Children need permanent, stable, loving homes—and they need their individual best interests to be prioritized over other considerations. And that means that we stop regarding Indian children as categorically different. Whether it’s done in a demeaning way, or in a romanticizing way, that habit of thinking hurts real kids.

These are not somebody else’s children—and not somebody else’s responsibility. These are American children, citizens of the United States, in American homes, whose rights are guaranteed by the American legal system. I’m sorry to say that in discussing ICWA I’ve sometimes been challenged, on racial grounds, for raising these concerns. “Why do white people care anyway?” reads one tweet that I received. The answer to that was given years ago by Martin Luther King Jr: “I am cognizant of the interrelatedness of all communities and states,” he wrote. “We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial ‘outside agitator’ idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.”

For too long, these children have been treated as different, subject to a separate set of disadvantageous rules, because of their biology—even if they have never visited tribal lands and have no cultural connection to a tribe. That’s wrong. All are entitled to equal justice before the law.