Now more than ever, Congress must amend the Indian Child Welfare Act

The Indian Child Welfare Act (ICWA) has been called “the most unconstitutional law in America,” and for good reason. The 1978 law hasn’t aged well. ICWA is a complicated law, but in essence, it creates a separate and inferior child-welfare system for “Indian children.” Last week, the Supreme Court issued a decision in Brackeen v. Haaland  — a case challenging the constitutionality of ICWA — that leaves this national embarrassment untouched and on the books. Congress must act.

Normal child welfare laws require the state to pursue the best interest of the child, prohibit foster and adoption placement decisions based on race, and allow authorities to remove children who have been abused or neglected to any available foster-care placement. 

ICWA turns all that on its head. It requires the state to pursue the best interests of the Indian tribe even if that is at odds with what would be best for an individual child. It requires child welfare officials to place children in race-matched foster-care homes and adoptions. And if an abused or neglected child cannot be placed with an Indian foster-family, authorities must return the child to the family that hurt them. 

It’s worth dwelling on the tragic results of this backward law.

Take Antonio Renova’s story. Montana officials knew his family was abusing him, so they put Antonio in foster care. He lived with the foster family for five years and had he been of non-Indian ancestry, they could have adopted him. But being a Crow Indian, when his foster parents expressed interest in adopting him, ICWA’s race-matching placement preferences kicked in. State and tribal officials sent him back to his birth parents. 

He was beaten to death. 

Or consider Declan Stewart. Oklahoma child-protection officers knew he was being beaten by his mother’s boyfriend. The officials could have easily found him a safe home if he were not Indian. But because he was Cherokee, ICWA forced them to return him to his mother’s custody. 

In 2007, the mother’s boyfriend murdered him. 

Thanks to ICWA, sisters Laurynn and Michaela Whiteshield, who had Spirit Lake ancestry, were placed with their grandfather on the reservation. 

A month later, his wife murdered Laurynn, and Michaela returned to foster care.

These tragic stories are the predictable result of a system that treats kids as members of a race rather than as individuals.

ICWA forces state officials to return Indian children to abusive families under a rule called “active efforts.” In all other cases, state officials must make reasonable efforts to preserve an existing family unit before they take a child from a parent’s custody. And for serious abuses, the child’s best interests always trump other interests. A well-functioning — and constitutional — child welfare system must consider each child’s unique circumstances to determine what is in the best interests of that child. ICWA instead requires state officials to substitute the interests of a tribe in place of the child’s best interests.

It goes without saying that America’s history with the Native tribes is troubled, but ICWA has only extended that history. ICWA was written in reaction to the removal of Native children from their parents to be placed at Bureau of Indian Education-run boarding schools where they were forbidden to speak tribal languages or practice Native religions. But all ICWA did was reduce protections for Indian children and impose race-based barriers, to disastrous effect.

Enough is enough. We don’t need any more dead children to prove that ICWA kills. It is time to treat Indian children, their parents, and extended family, as individuals. The child-welfare law in each state already carefully protects parental rights and the child’s rights. ICWA disregards both to protect some tribal government’s bruised ego. 

Congress must amend the Indian Child Welfare Act and excise these offensive, unconstitutional, and all too often deadly provisions. 

Adi Dynar is an attorney at Pacific Legal Foundation, a nonprofit legal organization that has defended Americans’ liberties when threatened by government overreach and abuse for the last 50 years.