Picture this: A little girl is ripped from the loving arms of her mother and sent to live in a home she does not know, solely because of her race. It’s not a dystopian work of science fiction, but instead is a tragic reality thanks to a federal law called the Indian Child Welfare Act, or ICWA. Originally designed to protect Native American children, ICWA today makes it harder to protect them from abuse or to find them the safe, loving adoptive homes they need. It even blocks Native American parents from taking steps to protect their own kids when they need to.
Now a new Goldwater Institute paper explains that despite the best of intentions, ICWA denies Native American children the legal protections that children of all other races enjoy. Vice President for Litigation Timothy Sandefur explains:
“ICWA creates a separate and substandard set of rules for at-risk children, based solely on their race. It does this by deeming a child ‘Indian’—and therefore subject to ICWA’s different rules—based solely on biology, without any regard for social or cultural ties to a tribe, or lack thereof."
ICWA imposes race-based foster care and adoption preferences, meaning that Indian children must be placed in foster care with or adopted by Indians—regardless of tribe—rather than by adults of other races, despite a drastic shortage of Native American foster or adoptive homes. This situation makes it more difficult to protect Indian children from abuse, and harder to find them permanent, stable homes, Sandefur says.
“Indian children are citizens of the United States, entitled to the same protections every other child enjoys—particularly the ‘best interests of the child’ rule. But ICWA overrides that rule. In one case last year, California courts even ruled that while white, black, Hispanic, or Asian children are entitled to one type of ‘best interests’ rule, a different kind of ‘best interests’ rule applies to Indian children.”
The Goldwater Institute is leading the fight for equal protection for Indian children on the state and federal levels. In July, the Institute filed a petition asking the U.S. Supreme Court to take a case that would decide whether ICWA overrides the wishes of Native American parents. Institute lawyers are also defending the rights of children in ICWA cases in California, Ohio, and Arizona.
“Fifty years after Brown v. Board of Education, it’s shameful that we still have a set of separate and unequal laws for children on the basis of their race,” Sandefur says. “The injustices of the past cannot excuse injustice toward today’s children. Native American children are entitled to the same rights that are guaranteed to children of all other races.”
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