By Habib Olapade
Habib Olapade is a first-year law student at Yale University.
The Indian Child Welfare Act of 1978 (ICWA) was passed in response to abusive child welfare practices resulting in the separation of large numbers of Native American children from their families through adoption or foster care placement in non-Native American homes. From 1969 to 1974, 25%-35% of all Native children were separated from their families and placed in foster care or adoptive homes.  In many states, this mass displacement lead to large discrepancies between the Native and non-Native adoption rates. In South Dakota, for instance, Native children were 40 times more likely to be adopted than their Caucasian peers, notwithstanding the fact that they were only 7% of the juvenile population. 
During ICWA hearings, Congress specifically found that state adoption agents, many of whom were ignorant about Native American social norms, would often impose western cultural values on Native families, and then resort to vague, pre-textual reasons such as neglect or social deprivation in order to justify child removal. Some Native cultures, for example, reject the nuclear family concept. Consequently, a Native child may have dozens of extended relatives within the tribe that the nuclear parents treat as close, responsible family members. An untutored social worker, however, might incorrectly believe that leaving a child with these relatives for extended periods of time constitutes good cause for custody removal.
The ICWA addressed this situation in three ways. First, the statute gave tribal courts presumptive jurisdiction over adoption proceedings involving Native children who do not live on a reservation.  Tribal courts would, ostensibly, be less likely to award custody of a Native child to a non-Native parent. Second, ICWA prevented state courts from terminating a Native parent’s custodial rights without proving that continued custody is likely to result in serious emotional or physical damage to the child.  Finally, ICWA forced tribal and state courts to give priority to potential custodians in the child’s extended family, tribe, or an unrelated Indian tribe before awarding custody to non-Native adoptive couples. 
The ICWA’s preference provisions have generated substantial controversy because they formally classify all Native American children into a single racial group and then unabashedly single out that group for race-matching in adoption proceedings. Randall Kennedy, a Harvard Law School professor, has been one of the ICWA’s sharpest critics. Kennedy argues that the preferences interfere with the child’s best interests by prolonging foster care waiting times for Native children when there are non-Native parents who are more than willing to adopt them.  In some cases, the ICWA preference allows a Native child’s distant relative to force that child out of her longstanding Non-Native adoptive home simply because it assumes, rightly or wrongly, that Native children are best raised in Native families.
The Goldwater Institute, a conservative think-tank, has recently filed a lawsuit challenging the ICWA on the grounds that it establishes an unconstitutional racial classification by singling out Native children for race-matching in adoption and foster care proceedings.  There may be some some cases where the ICWA preference does not promote a Native child’s best interests. However, if the theory behind the Goldwater challenge, which is that the government should never single out Native Americans for preferential treatment, is successful, this challenge could create far more problems than it solves.
Unlike individuals in other racial groups, members of Native American tribes share a special relationship with the federal government. Tribes retain some inherent sovereign powers, although Congress has plenary power over the tribes.  Since the mid-twentieth century, Congress has decided to exercise this plenary authority so as to preserve the tribes’ ability to govern themselves.  In practice, Congress has carried out this objective by allowing tribes to confer remedial benefits on tribal members while denying those benefits to non-members. These preferences prevent further shrinking among the tribes’ ranks, and help ensure that civil servants on reservations are knowledgeable about Native customs. 
If these compensatory classifications were unconstitutional because they singled out Native Americans, the federal government would be powerless to remedy past wrongs or even pass basic laws recognizing the special status and existence of the tribes. Taken to its logical conclusion, the Goldwater theory would eliminate the tribes’ formal legal status, which is why many commentators have not been duped by the Institute’s attempt to garner sympathy among the public by masquerading behind a few unfortunate cases under the ICWA.
Indeed, in Morton v. Mancari (1974), the Supreme Court avoided this cliff by holding that these programs did not violate the Constitution, because the preferences did not confer benefits on a racial basis but rather on the basis of membership in a quasi-sovereign entity.  The Morton distinction makes sense because a tribal member could hypothetically renounce membership in a federally recognized tribe and forfeit her opportunity to take advantage of a tribal preference. Tribal membership, not race, is the touchstone.
After the Reagan Revolution, though, the Court began to gradually chip away at its prior holding in Morton. In Rice v. Cayetano (2000), the Justices invalidated a state voting scheme that only allowed Native Americans to vote for representatives on a state board charged solely with redressing the effects of past discrimination against Native Americans.  More recently, in Adoptive Couple v. Baby Girl (2013), the Court stated explicitly that the ICWA would raise serious constitutional concerns if it were interpreted to allow an absentee Native relative to remove a Native child from his long standing non-Native adoptive home. 
The ICWA is far from perfect. No child of any race should be forcibly removed from a loving home or compelled to languish in foster care because of a crude stereotype. With the support of the Bureau of Indian Affairs, some state and tribal courts have tried to correct this problem by foreclosing removal in cases where it is clearly against the child’s best interests. Other states, however, have not followed this path and, consequently, it may be necessary to amend the ICWA moving forward. In solving this problem, however, we should be cautious that we do not administer a cure that is worse than the disease. To state the question at hand more directly, are all the tribal families, but one, to go unrecognized, and the existence of the tribes themselves go to pieces, lest one child be inconvenienced? This the Constitution does not command.
 House Report No. 95-1386, July 24, 1978.
 25 U.S.C. § 1911.
 25 U.S.C. § 1912.
 25 U.S.C. § 1914.
 Kennedy, Randall. Interracial Intimacies: Sex, Marriage, Identity, and Adoption 480, 518 (2003).
 Laird, Lorelei. Lawsuits Dispute Whether the Indian Child Welfare Act is in the Best Interests of Children, ABA Journal, October 1, 2016.
 Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
 25 U.S.C. § 461.
 Morton v. Mancari, 417 U.S. 535 (1974).
 Rice v. Cayetano, 528 U.S. 495 (2000).
 Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013).
Photo Credit: Flickr User Anthony Quintano
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