When is racial discrimination not considered racial discrimination? When progressives like it. One example of discrimination they like is the Indian Child Welfare Act, which perversely harms the Native American children it was purportedly passed to help. Reason magazine reports:
The Supreme Court announced Monday that it would hear a lawsuit challenging the constitutionality of the Indian Child Welfare Act (ICWA), a 44-year-old federal law governing child welfare, foster care, and adoption for children who qualify as “Indian.” The case—which resulted in more than 300 pages of conflicting opinions in the lower court—began when a Native couple in Texas was unable to care for their child and agreed to have him adopted by a white family named the Brackeens. That triggered a legal showdown involving controversial aspects of the law: the ICWA treats “Indian children” differently than black, Asian, Hispanic, and other minority children, and it flouts longstanding principles of federalism by commanding state officials to enforce federal mandates.
To understand these controversies, consider the rules governing the termination of parental rights. Under the laws of every state, child welfare officers can sever an abusive parent’s rights if there’s “clear and convincing” evidence that the child is at risk. But the ICWA says that in cases involving “Indian children,” state officers must instead prove that risk “beyond a reasonable doubt” with the testimony of expert witnesses. That’s a stricter standard than applies even in criminal law, where expert witnesses aren’t required. By demanding more evidence of harm, the ICWA effectively requires that “Indian children” be more abused than kids of other races before officials can rescue them. And because termination of rights is usually necessary before a child can be adopted, this higher standard means it’s easier to put someone on death row than to find an adoptive home for an “Indian child.”
That phrase is in quotation marks because the ICWA defines “Indian child” not only as children who are tribal members but also as children who are eligible for membership and whose biological parent is a member. That means a child with no cultural connection to a tribe can still be deemed “Indian” based exclusively on her biological ancestry—whereas a child who is fully acculturated to a tribe might not be, solely due to the blood in her veins.
In Morton v. Mancari (1974), the Supreme Court said laws treating tribal members differently from non-members don’t violate constitutional rules against race-based legislation, because tribal membership is a political, not racial, category. But the ICWA applies based on ancestry, not membership; it even applies to kids who never become tribal members. That means it’s a racial, not political, distinction.
Also, the ICWA does not apply on reservations—it only governs states. And it does so in perverse ways. Consider, for example, its “active efforts” rule. Every state’s laws provide that if the government takes a child from a dangerous home, it must make “reasonable efforts” to assist the family and return the child. That means providing the parents with social services to help them improve their situation. But this is not required in cases involving “aggravated circumstances,” such as sexual molestation—which makes sense: it would be wrong to send kids back to situations where officials know they will only be harmed again.
Yet the ICWA requires just that. It requires “active efforts,” not “reasonable” efforts, and this is not excused by “aggravated circumstances.” This means “Indian children” must be returned, time and again, to homes child protection officers know are abusive. The results have often proved fatal.
In 2014, for example, a newborn named Antonio Renova was taken from his abusive parents and placed in foster care with a family that gave him a safe and loving home for four years. Had he been from Japan or Kenya, they could have adopted him. But Antony was of Crow heritage, so his case was governed by the ICWA. When his foster parents sought to adopt him, a tribal court ordered him returned to his birth parents instead; months later, they beat him to death.
Oklahoma officials knew that 5-year-old Declan Stewart was being abused by his mother’s boyfriend. If he had been Australian or Mexican, they could have rescued him—but because he was Cherokee, the ICWA’s “active efforts” requirement forced them to return him to the home, where in 2007 he was raped and murdered.
Even where the outcomes of the ICWA’s rules are less extreme, it inflicts horrendous harm on children. In the headline-grabbing “Lexi” case, a 6-year-old California girl, whose last full-blooded Choctaw ancestor was her great-great-great-great-grandfather, wept as she was snatched from the arms of the foster family who had cared for her for four years. She was sent to live with non-relatives in Utah—a fate that would have been illegal, had she been white.