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Kids, Courts, and the Indian Child Welfare Act

17 Dec 2018

Walter Olson

Get ready to hear much more over the coming year about the
Indian Child Welfare Act of 1978. In October, in a case called
Brackeen v. Zinke, Texas federal judge Reed O’Connor

ruled much of ICWA unconstitutional
. Since then advocates of
the law, led by Indian tribes and social welfare organizations,
have been sounding the alarm: ICWA, a law representing a step
toward making amends for America’s historic maltreatment of
Native Americans, is under attack. (Appeal is pending.)

Some of the outcry has now been personalized into an attack on
the jurist responsible for the ruling. In an unrelated December
2018 case Judge O’Connor, a 2007 George W. Bush appointee,
handed down a much-criticized ruling finding the Affordable Care
Act unconstitutional, and online critics were soon connecting the
two rulings as “activist” products of the same
unreasonable hand.

ICWA elevates tribal
interests over vital parental and family interests, as well as the
best interests of actual children.

But the constitutional problems with ICWA are real, and it
didn’t take Judge O’Connor to spot them. While the law
was aimed at remedying a genuine problem, in the course of doing so
it created new problems, which federal courts including the US
Supreme Court have had to wrestle with ever since. In particular,
ICWA takes away some rights that parents and children would
otherwise enjoy under prevailing principles of family law, and it
does so in ways that are hard to square with principles of equal

The injustices that ICWA was meant to correct were real,
longstanding, and serious: states were taking children away from
Native American parents without adequate justification. True, many
Indian communities suffered from high rates of social dysfunction
of forms hazardous to kids, so rates of child removal surpassing
those of outside communities would not themselves be unexpected.
But as hearings at the time showed, states had taken children away
from Indian parents without fair process or convincing proof that
they were likely otherwise to suffer serious injury. After being
separated, children were sent to foster care or residential schools
— both systems rife with problems of their own — and
often to adoption by non-Native families.

(It’s worth noting that the phenomenon in which Child
Protective Services agencies can raid families and seize kids for
flimsy reasons and without fair process was not and is not limited
to that era or to Native families. In a new book, They Took The
Kids Last Night, Chicago parents’-rights attorney Diane
Redleaf details horrifying episodes of this sort that continue
today around the US — the whole US, not Indian country
— often touched off by unreliable reports of abuse,
compounded by unreliable forensics, and made worse by
agencies’ presumptions of greater expertise and
parents’ unawareness of their rights.)

As a libertarian who would like to keep government interference
with family life to a minimum, I’m highly sympathetic toward
moves that heighten the presumption against breaking up intact
families. So on that front, at least if you set aside issues of
federalism, ICWA would seem to be a step in the right direction,
and the question is whether that same presumption might not be
extended more broadly to benefit families in general.

ICWA also transferred power over placement of Indian children
— more on the vexed definition of that term later —
from state child welfare agencies to tribal governments. That is
more controversial, since while the states may have shown
themselves flawed in some ways, the tribes may prove flawed in
others. Critics such as the Arizona-based Goldwater Institute
contend that in practice the tribes often lack both the skill and
the political will to carry out needed interventions and placements
for kids at risk. As in the wider child welfare system, horror
stories are not lacking of death or injury to kids returned to
parents’ or relatives’ care despite danger signs.
Defenders of ICWA say tribes have made strides already in allying
with professionals to improve their child welfare capabilities, and
are likely to do a better job as time goes on.

Where ICWA is at its most controversial is when it strips away
family law rights that parents or children would otherwise have

Consider the first dispute under the law to reach the U.S.
Supreme Court, the 1989 case of Mississippi Band of Choctaw
Indians v. Holyfield
. A mother and father agreed on an
off-reservation adoptive placement they saw as promising a better
life for their child. But under ICWA, the Court ruled, they
couldn’t do that without the tribe’s permission,
because ICWA required that tribes be given first access before an
Indian child was placed outside Indian communities. In short,
rights of choice that non-Native parents would take for granted
would not be honored for them; their offspring was a resource for
the tribe to conscript to improve its hopes of continuation as an
institution, no matter what Mom and Dad’s views of the
infant’s best interests. Famously, the late Antonin Scalia
was to describe Holyfield as the most troubling case he had
encountered in his years on the Court, because of the way the
interests of the actual family before the court clashed with the
plain directives of the law, which as a jurist he felt he had to

Personal and parental autonomy regularly counts for little in
the ICWA scheme. In the Washington state case In re the
Adoption of T.A.W.
, the mother with Indian ancestry wanted the
tribe to stay out of it, to no avail. In the Oklahoma case of
M.K.T., the father wanted to unenroll from tribal
membership, again in vain.

When conflict divides a family, ICWA often results in doling out
unequal rights to parents or family members based on lineage.
Consider the second case under the law to reach the U.S. Supreme
Court, 2013’s Adoptive Couple v. Baby Girl. A
paperwork mix-up had prevented the proper notification of Baby
Veronica’s unwed dad. But time had elapsed, and ordinarily
that would be that: had he not been affiliated with a tribe, he
would not have been in a legal position to block her adoption.
Under ICWA, it seemed, there were two kinds of parental rights
— a robust kind for the parent with a tribal affiliation, and
a weaker kind for a parent without.

This is troublesome from an equal protection standpoint, above
all because the line dividing whole rights from the skim-milk
variety is based primarily on accidents of birth, bloodline, and
lineage, grounds ordinarily forbidden under our Constitution.
“Is it one drop of blood that triggers all these
extraordinary rights?” asked Chief Justice John Roberts in
the Adoptive Couple case. “It happened here because of ICWA…
and it happened because of 3/256ths of Cherokee blood.” (The
child had an Indian great-great-great-great grandparent on her
father’s side)

One effect is to give tribal governments dangerous power over
persons who never willingly submitted to their authority, including
persons who have never set foot in Indian country. A couple briefly
connect at a bar in Boston or Brooklyn or Baltimore one night and a
child is born as a result. The father may not have mentioned at the
time, indeed may only imperfectly remember, that as a child he was
inducted into an affiliation with some faraway tribe toward whose
leadership he has long felt indifferent or estranged. But ICWA
covers as an “Indian child” any biological child of a
tribal member so long as that child is “eligible for
membership” in a tribe.

Sorry, Dad — and sorry, total-bystander Brooklyn Mom
— but under ICWA that distant tribe now has a lot of power
over your future. You are not necessarily free to make an adoption
plan with some trusted member of your local community. Instead, you
must submit to a distant tribal authority and prepare for the
child’s possible “placement … in … homes [that] reflect
the unique values of Indian culture.” What about your own
cultural background as a non-Native parent, along with that of your
relatives who may have been helping care for the child during his
first years? Your youngster may have spent his life thus far
immersed in that other culture — perhaps Korean-American, or
Dominican, or African-American, or Eastern European. But the law
cares not. In fact, it encourages as “ICWA-compliant”
placement of your child with any Indian tribe around the country,
however remote from that of either biological parent’s, in
preference to any non-Native placement, however well matched to the
circumstances of the child’s life thus far.

In short, ICWA elevates tribal interests over vital parental and
family interests, as well as the best interests of actual children.
As litigants prepare to take Judge O’Connor’s ruling up
for likely review by the Fifth Circuit, it will not be easy to go
on dodging these questions forever.

Walter Olson
is senior fellow at the Cato Institute.

Click here to view the full article which appeared in CATO Journal