I join Caleb Brown at the Cato Daily Podcast for a discussion of the constitutional and practical problems with the Indian Child Welfare Act of 1978 and the challenge currently before the Fifth Circuit in Brackeen v. Bernhardt.
“For Congress to impose a racialized and non-neutral regime on parents and children is not only unwise and unfair, but unconstitutional.” The Cato Institute has joined an amicus brief challenging the Indian Child Welfare Act (ICWA) in the Fifth Circuit case of Brackeen v. Bernhard. I’ve got more details in a new post at Cato at Liberty. Earlier on ICWA here.
Our September 20 Cato legal panel on the Indian Child Welfare Act (more) was more timely than I could have imagined. In the federal case of Brackeen v. Zinke, discussed on the panel, Judge Ryan O’Connor of the Northern District of Texas on October 4 declared major provisions of ICWA unconstitutional on multiple grounds including equal protection and anti-commandeering doctrine. More: Timothy Sandefur; Matthew Fletcher, TurtleTalk; Emma Platoff, Texas Tribune; John Kelly, Chronicle of Social Change.
Appeal is likely. Just before the decision, the public-radio-associated program Native America Calling had a program showcasing tribal advocates’ views. I’ve written about the Act, including its constitutional and moral infirmities, here and, as part of a Cato Unbound symposium, here.
“Passed in 1978, the Indian Child Welfare Act (ICWA) was intended to stop abusive practices by state and federal officials, who often removed Native American children from their families without sufficient justification. But today, ICWA is the subject of litigation in federal and state courts by challengers who argue that it imposes race-based restrictions on adoption and makes it harder for state officials to protect Native American children against abuse and neglect.”
On September 20 I moderated a Cato discussion of recent developments and upcoming challenges to ICWA, presented by Timothy Sandefur, Vice President for Litigation at the Goldwater Institute and author of Escaping the ICWA Penalty Box; Matthew McGill, attorney for plaintiffs in Brackeen v. Zinke, a major ICWA lawsuit under way in Texas; and Charles Rothfeld, who represented the birth father in the important ICWA case Adoptive Couple v. Baby Girl. Earlier on ICWA here.
I’m one of four participants in a symposium at Cato Unbound this month on the Indian Child Welfare Act. Timothy Sandefur (Goldwater Institute) writes the principal paper to which I respond; other responders include Profs. Matthew L. M. Fletcher (Michigan State) and Kristen Carpenter (Colorado). Earlier coverage of the Indian Child Welfare Act here. Excerpt from my contribution:
Someday we might want to design a legal regime that minimizes state intrusion into families, limits the discretion of faraway bureaucrats, and empowers parents by clarifying their rights. But ICWA sure isn’t it. It’s a power play that’s meant to serve the interests of one governmental actor on the scene, the tribe. It regards children and parents as tribal resources to be conscripted, and it designates a vastly overbroad group of children to grab as “Indian children,” the better to maximize resource intake.
“Identity politics can leave a trail of broken bodies and broken hearts… [ICWA treats] children, however attenuated or imaginary their Indian ancestry, as little trophies for tribal power.” George Will (alternate link) on a law I’ve also written about, the Indian Child Welfare Act:
The act empowers tribes to abort adoption proceedings, or even take children from foster homes, solely because the children have even a minuscule quantum of American Indian blood. Although, remember, this act is supposedly not about race….
In final adoption hearings in Arizona, a judge asks, “Does this child contain any Native American blood?” It is revolting that judicial proceedings in the United States can turn on questions about group rights deriving from “blood.”… This is discordant with the inherent individualism of the nation’s foundational natural rights tradition, which is incompatible with the ICWA. It should be overturned or revised before more bodies and hearts are broken.
Is ICWA, the Indian Child Welfare Act of 1978, unconstitutional, bad policy, both, or neither? Does it impermissibly hand out rights in domestic relations disputes based on forbidden grounds of race and lineage? My new Reason piece on SCOTUS’s adoption heartbreaker is now out. ICWA advocates have argued that the law should be read generously as an effort to remedy a long earlier history in which Indian kids had been improperly been taken out of their homes. More on the case: SCOTUSBlog (I recommend in particular the amicus brief on behalf of family law experts Joan Heifetz Hollinger and Elizabeth Bartholet), ABA, oral argument transcript. And for a viewpoint extremely different from mine, Matthew Fletcher and Kate Fort write up the case at the Indian law blog Turtle Talk (first, second).(& SCOTUSBlog, How Appealing)
“Should the law require state child-welfare authorities to treat black children differently from white children? Lawmakers in Minnesota may soon vote on a bill to do just that. ” I have an op-ed in the weekend Wall Street Journal’s “Cross Country” column (paywalled) on a bill that has passed a Minnesota senate committee and would introduce explicit racial classifications into the state’s child welfare system, the idea being to institute markedly stronger protections for black families against child removal. I argue that if the provisions are a good idea, they should apply to all families, an argument with implications for the Indian Child Welfare Act (ICWA), on which the Minnesota bill was modeled. More on the proposed Minnesota African American Family Preservation Act: Sara Tiano/Chronicle of Social Change, Brainerd Dispatch, Insight News.
- Full Fifth Circuit agrees to rehear challenge to constitutionality of Indian Child Welfare Act; a three-judge panel, reversing district court, had upheld the law [Timothy Sandefur, my post with Nathan Harvey from earlier this year]
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- Full Fifth Circuit should review ruling upholding Indian Child Welfare Act against constitutional challenge [Ilya Shapiro on Cato amicus brief seeking en banc reconsideration in Brackeen v. Bernhard; earlier]
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