Lexi lived four of her first six years with a non-Native American California foster family, but because she is 1/64th Choctaw, tribal officials got her taken from the Californians and sent to live in Utah with a distant relative. On Friday, the Supreme Court will consider whether to hear a challenge to the law that made this possible — the Indian Child Welfare Act, which endangers many young Native Americans. It also is a repudiation of the nation’s premise that rights are inherent in individuals, not groups.
In 1978, before “Native Americans” became the preferred designation for Indians, but when racial “identity” was beginning to become the toxic political concept it now is, Congress enhanced tribal rights. This violated, among other principles, those of federalism: Congress thereby reduced the right of states to enforce laws on child welfare. And it plunged government deeper into making distinctions solely on the basis of biological descent.
The ICWA, an early bow toward multiculturalism, buttressed tribal identities by strengthening tribal rights. For example, tribes can partially nullify states’ powers to intervene against tribal parents’ abuse endangering children. And the ICWA conferred rights on tribes, rights adjudicated in tribal courts, including the right to require Native American children be adopted by Native Americans.
Equal protection of the laws? Not under ICWA.
Chief Justice John G. Roberts Jr. has asked, “Is it one drop of blood that triggers all these extraordinary rights?” Indeed, the primitive concept of racial “blood,” recast as DNA, triggers tribal rights and extinguishes a state’s right to protect many children’s rights. Sometimes with dire consequences.
In 2015, this column acquainted readers with Declan Stewart and Laurynn Whiteshield. Declan was 5 in 2007 when he was beaten to death by his mother’s live-in boyfriend. Oklahoma had removed him from his mother’s custody after he suffered a fractured skull and severe bruising between his testicles and rectum. But when the Cherokee Nation objected to his removal, Oklahoma, knowing that the ICWA favors tribal rights, relented. Beaten again, he died a month after returning to his mother.
From the age of 9 months until almost 3, Laurynn was in a North Dakota minister’s foster care. When the minister tried to adopt her, the Spirit Lake Sioux tribe invoked the ICWA, and Laurynn was sent to a reservation and the custody of her grandfather. Less than six weeks later she was dead, having been thrown down an embankment by the grandfather’s wife, who had a record of child abuse.
The ICWA requires that “Indian children” be placed with “Indian” foster families. Because the ICWA allows a child to be yanked from a non-Indian foster home — and from possible adoption — it discourages non-Native American adults from providing care, including early infant attachment, which is a foundation of healthy child development.
Born with fetal alcohol syndrome, Antonio Renova was 3 days old when he was taken from his biological parents, members of the Crow tribe, and put in foster care. Five years later, the biological parents, both on probation following felony convictions (the mother’s included child endangerment), obtained custody of Antonio through a Crow tribal court. He suffered beatings by his parents, who have been charged in his death.
Antonio was a casualty of the ICWA’s form of identity politics — the allocation of legal status and group entitlements based on biology. The ICWA has insinuated into law a “separate but equal” test regarding Native American children in jeopardy. It demotes “the best interests of the child” from the top priority; it makes a child’s relationship with a tribe supremely important.
The nation has abundant reasons to regret its mistreatment of Native Americans, and the ICWA was perhaps motivated by an impulse to show respect for Indigenous cultures. But the cost, in broken bodies and broken constitutional principles, has been exorbitant.
Today, the nation is reverting — in the name of “social justice” and “equity” understood as improved social outcomes for government-favored groups — to a retrograde emphasis on racial identities. So, the ICWA’s sacrifice of individual rights to group entitlements probably has a diminished power to shock. Come Friday, however, the Supreme Court should be shocked into hearing the arguments against the federal government usurpation, through the ICWA, of the states’ responsibility for protecting children in jeopardy, regardless of their biological ancestry.