Native American Children: Separate But Equal?

Originally written by Clint Bolick for Newsweek

The obituary of Laurynn Whiteshield depicts her as a happy and playful little girl. And for most of her short life, she was.

From the age of nine months, she lived with her twin sister Michaela in a loving foster family that wanted to adopt her. When the girls were just shy of three, the county acted to make them available for adoption. But a court ordered that the girls be taken from their foster home and placed with their grandfather and his wife, who had been arrested a half-dozen times for abuse, neglect, endangerment, and abandonment of her own children.

Thirty-seven days after the transfer took place, Laurynn was dead. The grandfather’s wife admitted to pushing both down an embankment, explaining that she “was getting depressed about having kids all the time.” Although her sister survived, Laurynn suffered blunt force trauma to her head.

The forced transfer from a safe, loving foster family to a home that posed great and obvious danger to the girls did not happen in a third-world country but in the United States. It did not happen 40 or 60 years ago but in 2013. And it did not happen because the court ignored the law but because it followed it.

Had any of the child custody laws of the 50 states been applied, in all likelihood Laurynn would be alive today. That is because state laws require consideration of the “best interests of the child” in determining termination of parental rights, foster placements, and adoptions. That bedrock rule protects all American children—except children of Native American ancestry, like Laurynn. Although she had never lived on a reservation, because of Laurynn’s ancestry, she was made subject to the Indian tribe’s jurisdiction, which determined it was better to “reunify” her with a grandfather with whom she had never lived instead of the non-Indian foster family who had raised her from infancy and wanted to adopt her. All because of different rules that apply solely to children of Indian ancestry.

Even more bizarre is that the separate and unequal treatment of children with Indian blood is the result of a federal law that was enacted in their name: the Indian Child Welfare Act of 1978 (ICWA). ICWA was passed to halt the widespread practice prior to 1978 of separating Indian children from their biological families based on the flawed assumption that poverty and cultural differences on Indian reservations equated with child abuse. ICWA was intended to protect the best interests of Indian children and the stability of Indian tribes by setting minimum federal standards for termination of parental rights, foster care, and adoptions.

Unfortunately, ICWA elevated the interests of tribes above those of individual children, and it weakened the protections of children that state laws provide. For instance, to terminate parental rights, it must be proven beyond a reasonable doubt that leaving the child in the home is likely to result in “serious emotional or physical damage”—the same standard applied in criminal cases. The result is that many Indian children are left in abusive homes and suffer grievous physical and emotional harm, even when there are eager families who would like to provide them with safe and loving homes.

Nor does ICWA apply only to Native American children living on Indian reservations. It applies to children who have only a smidgeon of Native American blood, and even to children who have never set foot on an Indian reservation. That is because ICWA allows the tribes to determine which children are eligible for membership and therefore are subject to the tribe’s jurisdiction. That determination usually is made on the basis of the degree of Indian ancestry as determined by the tribe.

In that sense ICWA is an historical anachronism. More than a century ago, Adolph Plessy was consigned by law to a separate “colored” streetcar because he was one-eighth black. Today, children with only a small percentage of Indian blood and few if any ties to a reservation are involuntarily made subject to tribal jurisdiction and deprived of their full rights of American citizenship. Surely that is not what the framers of ICWA had in mind when they sought to minimize interference with Indian tribes. The pendulum has swung dramatically from protecting legitimate tribal sovereignty in favor of giving them power over the lives of children with only remote tribal connections.

Once jurisdiction over a child custody proceeding is transferred to a tribal court, the rules that ordinarily protect children no longer apply. Recent Bureau of Indian Affairs guidelines implementing ICWA have completely eliminated the “best interests of the child” standard, presuming that placement in an Indian home is in the child’s best interests. As a result, children with Indian blood often are taken from foster homes where they have resided since birth and placed with Indian families with whom they have no ties whatsoever. Frequently, the search for adoptive Indian families goes on for years, disrupting the lives of children, depriving them of stability and permanency, and often inflicting severe emotional harm.

The separate and unequal legal regime applicable to children with Indian blood is especially bizarre given the fight that took place over inter-racial adoptions two decades ago. Though it may be difficult to believe, as late as the 1990s, many states had laws or policies making it difficult for non-white families to adopt black children. The National Association of Black Social Workers assailed inter-racial adoptions as “cultural genocide.” Because there was a disproportionately large number of black children needing adoption and a disproportionately small number of black families able to adopt them, the result of the rules was that many black children languished in foster care despite the availability of loving adoptive homes.

In the 1990s, I represented Scott and Lou Ann Mullen, Texans whose family of natural, foster, and adopted children resembled a mini-United Nations. An infant named Matthew came into their foster care, infected with syphilis and addicted to crack cocaine from the womb. The Mullens nursed Matthew to health and fell in love with him. They decided to adopt him and his older brother Joseph. But state officials told the Mullens they could not adopt them because the boys were black and Scott (who is white) and Lou Ann (who is Native American) were not.

The case gained national attention, and a coalition of liberals and conservatives mobilized to enact federal legislation forbidding racial discrimination in adoptions. There are now two diametrically opposed federal laws concerning adoption placements, one forbidding racial discrimination, the other requiring it—but only for children with Native American blood.

Under ICWA, adoptions by reservation families are preferred even if the child has no blood or other contact with the families, and even if it means separating the children from foster families with whom they have lived since birth. The law is often used to override the wishes of Indian parents putting their children up for adoption. And several states have laws that are even more stringent than ICWA in their tribal preferences.

A case currently pending before the Washington Supreme Court underscores such laws’ perverse (and in this case surely unintended) consequences. A seven-year-old girl was born to a mother who is Native American and a father who is not. Custody was awarded to the mom and the father’s parental rights were terminated. Thereafter the mother married a man who is not Native American, and who wants to become the girl’s legal dad. Ordinarily, such an adoption would be routine. But not under ICWA, which was invoked by the birth dad—who is not even Native American—to prevent the adoption on the grounds that “active efforts” were not made to preserve an Indian family.

Two years ago, the U.S. Supreme Court considered a case involving ICWA. The opening words of the Baby Veronica decision capture the law’s perversity: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2{010c6536f15f83a69f09c4467fdfb4a5656804feab27fe0dec71ed1e80da306f} (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child.”

By a 5-4 vote, the Court construed ICWA to avoid such a harsh result in that case. But in so doing it left the law intact, although a majority of justices expressed concerns about the law’s constitutionality. So long as the Court fails to confront the constitutionality of ICWA, it will continue to relegate children with Indian blood to second-class status.

To settle the issue, the Goldwater Institute on July 7 filed a proposed class-action lawsuit in federal district court in Arizona challenging the constitutionality of ICWA and the harsh Bureau of Indian Affairs guidelines implementing it. We represent children with Indian blood living in foster homes outside of Indian reservations and the foster families who likely would be allowed to adopt them were it not for the ICWA rules and preferences.

We raise several constitutional claims:

—Equal protection. All children and prospective adoptive families for adoption should be treated equally without regard to their race.

—Due process. Children should have their best interests taken into account in the contexts of termination of parental rights, foster placements, and adoptions.

—Federalism. Federal law cannot displace state jurisdiction regarding placements of non-reservation children.

—Freedom of association. Children cannot be forced to become members of Indian tribes and made subject to their jurisdiction.

By pursuing a class action lawsuit, we hope to avoid the possibility that our case will be decided on narrow factual grounds, and instead secure a precedent that invalidates ICWA and the regime of subjecting children to adverse treatment because of the racial quantum of their blood.

That cannot happen quickly enough. So long as ICWA stands, countless children will be left in abusive homes and prevented from or delayed in becoming part of a permanent loving homes. The sad fate that Laurynn Whiteshield suffered was eminently preventable and should never be repeated.