Discourse Magazine: Fixing the Indian Child Welfare Act

August 01, 2023 | By ADI DYNAR

At the end of June, the Supreme Court issued its long-awaited ruling in Haaland v. Brackeen, deciding that the Indian Child Welfare Act (ICWA) and its controversially unequal treatment of Native American children in child custody disputes survives constitutional scrutiny—for now. However, the decision also serves as a call to reconsider the reasons why the law was enacted in 1978 in light of our nation’s civil rights progress—and as a reminder that there is still important work to be done to reform adoption and child custody laws to best protect all kids.

Are We Really Protecting All Kids?

Civilized societies place a very high, if not the highest, value on protecting children. The child’s best interest animates every facet of family law: taking a child into government custody, foster placement, parent and caregiver conduct regulation, efforts to rehabilitate parents and caregivers, terminating parental rights, adoption, divorce, visitation rights, child support and so on. In all of these decisions, the individual child’s best interest is and should be unquestionably paramount.

But ICWA fails that standard. It creates a separate and inferior child-welfare system for “Indian children,” based entirely on their race or descent from a family member with even a distant relationship to an Indian child. If a child is determined to be Indian, that child’s best interest—if it is considered at all—is at best a secondary, tertiary or throwaway factor in matters of custody. Instead, the child becomes a pawn in a most sordid chess match, too often with tragic consequences.

ICWA requires the authorities to pursue the best interests of the Indian tribe claiming a relationship to the child, even if that is at odds with what would be best for that particular child. It requires child-welfare officials to race-match children with foster and adoptive parents. And under ICWA, if a neglected or abused child cannot be placed in a race-matched home, officials must place the child in a group home or return the child to the family that hurt them. ICWA systematically deprioritizes the welfare of the child and forbids authorities from overriding ICWA’s one-size-fits-all choices. ICWA thus prevents officials from doing what’s necessary to protect and in the best interests of an individual child.

The Brackeen case illustrates how race-matching can run counter to an individual child’s needs. Alex (not his real name) was placed in the Texas home of Chad and Jennifer Brackeen when he was 10 months old. Alex was born in Arizona but a few days after his birth, his mother brought him to Texas to live with his paternal grandmother. Texas’ child protective services removed Alex from his grandmother’s home and placed him with the Brackeens, where at the time of the suit he had lived for 16 months. Alex’s biological parents and paternal grandmother agreed with the Brackeens that they should adopt him. But Alex was an “Indian child”: His mother had Navajo ancestry and his father, Cherokee. After his biological parents’ rights were properly terminated, the two tribes sought to remove Alex from the Brackeens’ home and place him with a race-matched New Mexico family they identified. Alex’s mother testified how much Alex “loves” the Brackeens and they are “the only parents [Alex] knows.” Still, because of ICWA, the Texas court denied the adoption. Absent ICWA, no interloper would’ve been permitted to disrupt this loving, caring family.

The Legal Challenge

In Brackeen, parents teamed up with a few states to challenge the constitutionality of various ICWA provisions. They had three chief arguments: 1) Congress exceeded its authority under the Constitution, 2) ICWA violates the equal protection of the laws guaranteed by the Fifth and Fourteenth Amendments and 3) ICWA unconstitutionally delegates authority to Indian tribes that are neither states nor federal agencies at their discretion to alter ICWA’s prioritization order or override the child’s best interests. They won in the lower courts. But the Supreme Court disposed of the case mostly for technical reasons and declined to strike down ICWA.

On the first argument, the court concluded that the Indian Commerce Clause authorizes the enactment of ICWA and that Congress, therefore, didn’t exceed its authority by passing it. Second, the parents and states had argued that ICWA denies Indian children equal protection under the law, maintaining that ICWA singles out Indian children for substandard treatment. ICWA isolates Indian children and seeks to racially match them with foster and adoptive parents when the same authorities are forbidden by law to racially stereotype any other children or parents. But the court concluded that none of the petitioners have standing to challenge ICWA on this basis, so it decided not to decide this question.

Finally, the court didn’t address the delegation argument because these parents and states lacked standing to challenge ICWA’s constitutionality on this basis. However, Congress can address the matter: What is delegated can be undelegated in Congress, which it should do.

The court’s decision contains important lessons for litigation efforts going forward. Litigants must argue that old case law drawing race-based distinctions between Indians and everyone else should be overruled—that individuals should be treated as individuals, not as interchangeable pawns of one color. Litigators should continue to press equal protection arguments going forward. And parties should continue to argue that ICWA is an unconstitutional delegation of power to the tribes.

But this case contains an even clearer message for Congress: Because the court concluded that Congress can enact child-welfare law, it is now Congress’ job to amend ICWA to make it colorblind. Congress made this mess, and now Congress must fix it.

How Congress Should Fix ICWA

There is no longer any support for the notion that separate and unequal treatment under law is either necessary or appropriate for anybody. Merely two weeks after the court declined to strike down ICWA, it ended affirmative action in the nation’s universities. And in Brackeen, the court was careful not to decide whether the equal protection guarantee constrains or meaningfully limits Congress’ ability, under one of the enumerated commerce clauses, to enact race-conscious child-welfare law. Congress can and should amend ICWA to bring the federal law into compliance with the Constitution’s guarantee of equal protection.

Of course, the devil is—as always—in the details. But there are a number of changes that Congress ought to make to the law to bring it into alignment with the Constitution.

First, Congress should delete ICWA’s burden-of-proof provisions for foster placements and termination of parental rights. ICWA requires heightened “clear-and-convincing” evidence and “beyond-a-reasonable-doubt” burdens. These standards make it extremely difficult, if not impossible, to meaningfully protect the best interests of Indian children, since they require a higher level of proof to show that the child is being harmed in his or her current living situation. For custody disputes involving children of other races, though, the courts apply the “best-interests-of-the-child” standard, which requires less proof to justify the child custody decision. Lesser burdens of proof, courts have said, are constitutionally necessary to protect children without diminishing the parents’ rights. It’s clear, then, that ICWA ensures that Indian children are less protected in child custody disputes than are any other kids. Well-evolved state law more than adequately addresses the burdens of proof on this topic. Congress should amend ICWA’s outdated burdens of proof to bring it into the 21st century.

Congress should also delete race-matching provisions. These provisions require placement of Indian children not in accordance with their best interests but in the perpetuation of offensive stereotypes. There is no constitutionally sound way to rehabilitate those provisions: Race-matching is forbidden in foster and adoptive placements for all other children, and ICWA should correspondingly be amended.

Additionally, Congress should delete the provision giving states and tribes the power to decide the fate of a child via an intergovernmental agreement. These intergovernmental agreements permit state and tribal officials to extrajudicially seal the fate of children. Courts then have to give effect to hallwayagreements and reject what is best for the child.

And Congress should delete the jurisdiction-transfer and intervention provisions from ICWA. These provisions currently permit tribes to play the ICWA trump card at the 11th hour to yank cases out of state court and into tribal court if the state court does not go along with the tribe’s diktat. As a result, tribes are allowed to insert themselves into cases without having to prove that their solutions are different from or better than those offered by the state’s child-welfare agency. The ordinary law of transferring cases from one court to another should govern cases involving Indian children.

Congress should delete the withdrawal-of-consent provisions. Under these provisions, tribes and neglectful or abusive parents are allowed to withdraw their consent for a child’s placement, thereby overriding a court’s decision based on what’s best for the child. Instead, authorities should have to account for individualized assessments and the child’s best interests when it comes to making child custody decisions.

Congress should amend ICWA’s right-to-appointed-counsel provision to give everyone involved in a custody dispute, including the child, the right to court-appointed counsel in state and tribal court. Indian children currently do not have a right to counsel, and their voice is not heard in any meaningful fashion during child custody proceedings. That needs to change to ensure equality under the law is truly protected.

Congress should amend ICWA’s active-efforts provision to bring it in line with the best-interests-of-the-child standard that is applied to all other children. ICWA’s provision requires states to make active efforts to place an Indian child with Indian caregivers, allow unsupervised visitation with strangers and even return the children to abusive or neglectful homes. Many children are made to jump through additional hoops in the name of cultural acclimatization only to end up being harmed further, or worse, murdered. ICWA’s active-efforts provision fails to protect the best interests of the child, and so the law must be changed to ensure that it does.

Congress should amend some definitions, especially “extended family member,” “Indian child’s tribe,” “custodian” and “parent,” so that the child’s entire family may be considered for placement. As it currently stands, ICWA recognizes only one side of the child’s family that is racially Indian as the child’s “family.” That makes no sense other than that it perpetuates race consciousness, racial stereotyping and anti-miscegenation. Congress must make these definitions race-neutral.

Congress must strengthen ICWA’s voluntary-consent provision to ensure that the parent’s consent to the termination of parental rights or adoptive placement is truly knowing, voluntary and intelligent. ICWA permits parents to withdraw their consent “for any reason at any time.” Under ICWA, the life of an Indian child who is thriving in a loving foster or adoptive home can be disrupted overnight without reason. For all other children, consent to termination or adoption can be withdrawn only in rare instances and only for specific reasons like coercion or fraud. And courts sign off on such consent withdrawals only in rare instances where it is truly in the best interests of the child. ICWA should account for the realities of a child’s life and best interests to ensure that the same consent-withdrawal provisions applied to all other children apply to Indian children as well.

Finally, if ICWA is going to set certain mandatory minimum requirements in state courts, it’s important that those requirements also apply in tribal courts. Otherwise, ICWA turns into a foolhardy exercise where Congress ends up telling states with well-developed child-welfare law to lower their standards for Indian children, while leaving tribes that do not have well-designed child-welfare law free to apply their own standards when ICWA is more protective in comparison. It creates a race to the bottom in protecting vulnerable kids.

The history of relations between the federal government and Indian tribes has been obviously fraught and frequently prejudiced against Native Americans. But the wrongs of the past cannot be righted by treating children as mere avatars for their race. The failings of ICWA are tragic and well documented. ICWA’s perpetuation serves no one, least of all the at-risk kids it purports to serve. The Supreme Court should have struck down the law in Brackeen. But now it’s up to Congress to take up the challenge and fix this travesty of a law.

This op-ed was originally published at Discourse Magazine, on August 1, 2023.