June 19, 2023
Last week, the Supreme Court issued a complicated 133-page opinion turning away challenges to the 1978 Indian Child Welfare Act, a federal law that deprives Native American children of the legal protections against abuse and neglect that children of other races enjoy.
The case was brought by a coalition of parents and state governments, which argued that the act violates the Constitution’s rule against race-based legislation and intrudes into matters entrusted to state officials rather than to Congress. But the justices held, 7-2, that neither the adults who seek to help at-risk “Indian children” nor the states that are legally obligated to protect them from harm have legal standing to challenge that law.
The ruling marks just the latest injustice inflicted on Native Americans by the federal government — done, as usual, in the name of “helping” them.
The Indian Child Welfare Act was created out of a laudable desire to halt policies that had, in earlier decades, encouraged officials to take children away from Native families and forcibly assimilate them into White society. Those policies inflicted terrible psychological harm on these children.But rather than simply ending such practices, the 1978 law went further and established a separate set of rules to govern child welfare matters involving “Indian children,” a term the law defines to include children “eligible” for membership in a tribe, even if they aren’t members. Because every tribe bases “eligibility” solely on biological ancestry, this allows children to be deemed “Indian” even if they never become a tribal members and even if their last full-blooded Native ancestors lived centuries ago.
That matters because the rules this law imposes are actually less protective of the child than are the laws that apply to other children. The Indian Child Welfare Act overrides the ancient “best interests of the child” rule and imposes a provision called “active efforts,” which forces state child welfare officers to return abused Indian children to the families that have abused them — a rule that doesn’t apply to White, Black, Asian or Hispanic children. The result, in case after case, has been the preventable beating, molestation and murder of Native children whom state officials knew to be at risk.
What’s more, the law imposes race-based limits on foster care and adoption of American Indian children. These rules make it effectively illegal for non-Native families to open their hearts and homes to Native children — a race-based restriction that would violate federal law if imposed on any other race. And this color line applies even when Native parents themselves want their children adopted by non-Native families.
That’s what happened in the case before the Supreme Court. It involved a Texas child referred to in court documents as A.L.M. who was born to a Navajo mother and a Cherokee father. They were unable to care for him and chose the non-Native Brackeen family to adopt their boy. Had he been White, that would have been approved as a matter of course. But because he’s “Indian,” the Native-specific law allowed tribal politicians to veto his parents’ decision and order him sent to live on a reservation in another state with adults he had never met.
That not only violates his rights and the rights of both his parents and the Brackeens, but it also deprives Texas of its rightful authority to set the rules for adoption. Indeed, it imposes race-based limits that explicitly violate Texas state law.
In these and other ways, the Indian Child Welfare Act strips Native children of the legal protections that apply to children of other races. Yet in last week’s ruling, the justices turned a deaf ear to both constitutional principle and the suffering of Native children, holding that — for obscure technical reasons — neither the Brackeens nor state governments had legal standing to challenge the law’s cruel and unconstitutional provisions.
That’s distressing because, as Justice Brett Kavanaugh observed in his separate opinion, the Indian Child Welfare Act’s racially discriminatory provisions “raise significant questions under bedrock equal protection principles.” For decades, the court has made clear that it’s unconstitutional to base adoption decisions on the race of the child or the parents. And these questions are literally a matter of life and death for Indian children.
Native American children are the most at-risk demographic in the United States. They face a greater likelihood of every social malady — abuse and neglect, alcoholism, drug abuse, gang membership, suicide — than any of their peers.
These children aren’t foreigners who can be subjected to some separate set of laws. They are all American citizens, entitled to the same legal protections all other children enjoy.
Fortunately, the court left open the possibility that these questions might be resolved in future cases arising in state courts (where most cases under this law are decided). Someday, justice will be done for these children. But the Supreme Court has so far said: Not today.
• Timothy Sandefur is vice president for legal affairs at the Goldwater Institute.