Recent Developments in Indian Child Welfare Act Litigation: Moving toward Equal Protection?

By Sandefur, Timothy | Texas Review of Law & Politics, Spring 2019 | Go to article overview

Recent Developments in Indian Child Welfare Act Litigation: Moving toward Equal Protection?


Sandefur, Timothy, Texas Review of Law & Politics


"Has America's first-born forfeited his birthright to her boundless opportunities . . . ? America entered upon her career of freedom and prosperity with the declaration that 'all men are born free and equal'. . . . The claims of brotherhood, of the love that is due a neighbor-race, and of tardy justice have not been wholly lost on your hearts and consciences."

Introduction

The Indian Child Welfare Act (ICWA)2 is a federal law that dictates substantive and procedural rules to be followed by state courts and state child protection officers in child welfare cases- including foster care and adoption cases-involving "Indian children." The ICWA defines Indian children as children who are tribal members or who are "eligible" for membership and have a biological parent who is a tribal member.3 With regard to such children, the ICWA overrides state child welfare, foster care, and adoption law. In place of those state laws, it imposes heavier evidentiary burdens than what state law requires in cases involving the termination of parental rights (TPR)4 and race-based restrictions on who may foster or adopt Indian children.5 In these and other ways, the ICWA makes it harder for states to protect Indian children from mistreatment and reduces Indian children's opportunities to find stable foster homes or permanent, loving adoptive homes when needed.6 The ICWA even overrides the wishes of Indian parents who seek what is best for their children.7

Unfortunately, discussions of the ICWA in existing literature are often pitched in abstract terms, and fail to examine actual precedent-setting cases. Some writers have even dismissed these real-life precedents as mere "anecdotes."8 Other discussions focus almost exclusively on historical abuses that led to the ICWA's adoption, rather than today's legal problems caused by the ICWA's well-intended but flawed language.9 But several recent lawsuits- most notably Brackeen v. Zinke10-vividly illustrate the legal complexities and the injustices that often result from the ICWA, and indicate slow but significant progress toward extending to Indian children the equal protection of the laws to which the Constitution entitles them, and which the ICWA fails to provide. This article will survey some of these recent developments.

I. Brackeen: ICWA as a Race-Based Statute and an Intrusion on State Autonomy

Brackeen directly addresses some of the major constitutional controversies surrounding the ICWA, particularly involving questions of racial discrimination and intrusion on state autonomy. To understand the significance of Brackeen and other cases, it's necessary to review how the ICWA works.11

A. How the ICWA Operates

1. Racial or Political Lines?

The ICWA applies to child custody proceedings involving an "Indian child," a term defined as a child who is either a tribal member, or who is both eligible for tribal membership and is the biological child of a tribal member.12 Eligibility for tribal membership is a function of tribal law and differs from tribe to tribe, but all tribes determine eligibility exclusively in terms of biological descent. For example, the Navajo require that a person have at least one-quarter Navajo blood in order to be a tribal member.13 The Gila River Indian Community (GRIC) requires one-quarter Indian blood, although not necessarily GRIC blood.14 The Choctaw and Cherokee have no minimum blood requirement, but they require that a person be the direct biological descendant of a signer of the 1907 Dawes Rolls.15 No tribe requires any consideration of political, religious, or cultural factors as a condition of membership. Only biology counts.16

That means that a child such as Lexi-the subject of a controversial 2016 ICWA case in California17-qualifies as an "Indian child" despite the fact that she has no cultural connection to the tribe, speaks no tribal language, practices no Native religion, and has never lived on tribal lands.18 Nor does a child who is adopted by a tribal member qualify as an Indian child under the ICWA-even if she does speak a tribal language, practice a Native religion, live on tribal land, and consider herself a member of the tribe-because a child must be the biological child of a tribal member to qualify. …

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