Supreme Court should take case on legality of the Indian Child Welfare Act

OCTOBER 2017 TERM

Custodial proceedings are some of the most sensitive cases that we ask our state courts to address. There are several critical issues at play: Does the parent present a risk of harm to the child? What would be best for the child? The questions are often difficult, and the stakes are high. A wrong decision could take a child from a loving parent — or place her back in a dangerous situation. But in almost all custody proceedings in America, state courts try to examine the circumstances and determine what action is in “the best interests of the child.”

For a small group of children, however, other considerations take priority. For these children, the federal government steps in and tells the courts that they must place group interests over the interests of the individual child. It doesn’t matter if the child has no social or cultural connection to the group, or if she has have ever met a single member of that group. All that matters is her blood ancestry.

It sounds shocking, but it’s true. The law is the Indian Child Welfare Act and it is applied when courts review adoption, custodial, or parental rights proceedings involving Native American children. The child need not be a member of any tribe, just eligible for membership. In some instances, this may mean a child whose family has lived apart from the tribe for generations, and has only distant Native American relatives — essentially a “one drop of blood” standard.

To understand how unfair ICWA can be in practice, one need only look at a case currently on petition before the U.S. Supreme Court, S. S. v. Colorado River Indian Tribes, litigated by the Goldwater Institute in Arizona. In its case, two Native American children known only by their initials, S.S. and S.S., appeared before the court to have their mother’s parental rights severed. The court in Arizona found that the mother had effectively abandoned her children. Her past behavior — such as failing drug tests and taking the children across state lines without knowledge of the father — showed that being placed with the mother presented a substantial risk of harm to the children. The court found that the preponderance of the evidence established that severing the mother’s rights was in the best interests of the children.

Nonetheless, the court did not terminate the mother’s rights. The court also held that ICWA required the father, who was now remarried to a woman who wanted to legally adopt the children, was required to make “active efforts” to preserve the family — in other words, he should have tried to repair the relationship with the mother who had previously disappeared with his children. Oh, and one more thing, the mother is not Native American, only the father and children are. Goldwater Institute has asked the Supreme Court to review this case.

The Supreme Court should accept the case and review ICWA’s constitutionality. Congress has no business regulating state-court custodial proceedings just because the children happen to have Native American blood.

Under Supreme Court precedent, laws that discriminate on the basis of race must pass a difficult form of judicial review — strict scrutiny. A law can only be found constitutional if it is narrowly tailored to a compelling governmental interest. But courts that have reviewed ICWA have used a lower form of review, requiring only that the law be rationally related to a legitimate government purpose. Because ICWA applies to children based on their ancestry, it must be considered a race-based law that is only constitutional if it can survive strict scrutiny analysis.

Congress has only limited, enumerated powers. The Constitution grants Congress the power to regulate “commerce ... with the Indian tribes.” But familial relationships aren’t “commerce,” and a divorced couple with children aren’t “Indian tribes.” A custodial proceeding between estranged family members is a matter that properly belongs in state courts, free from federal interference.

ICWA was passed because state courts and agencies had a shameful history of removing Native American children from their parents, believing that an upbringing with a white adoptive couple would always be in the “best interests of the child.” But ICWA attempts to remedy that injustice with another, denying the “best interests of the child” standard — the standard provided to children of all other races — to Native American children who find themselves in the difficult and harrowing experience of placing their fate in the hands of state courts.

If the constitutional guarantee of equal protection is to mean anything, then no child should face a different standard of law dictated solely by their race. We hope the Supreme Court will agree.