One of the bedrock laws governing Native American family rights is being challenged by multiple lawsuits filed around the country in the last two months, setting up a case that experts say is likely to eventually end up at the Supreme Court.
The Indian Child Welfare Act (ICWA), passed in 1978, prevents states from removing Native American children from their families and placing them in non-Native foster families. The plaintiffs in these cases argue that ICWA and similar laws are harmful to Native American children by blocking their removal from unsafe family situations, while tribal leaders and advocates say it prevents families from being torn apart.
For decades, thousands of Native American children were removed from their families and placed into Christian boarding schools or, later, adopted into white families. The children were forced to assimilate into American culture and leave their heritage behind—one piece of our country’s long history of violating Native American rights. According to some estimates, 25 to 35 percent of Native American children have been taken from their families.
ICWA was passed to end that. According to the law, state agencies must first try to place Native American kids with a family member, a foster family from the same tribe, or a Native American foster family before they are placed in a non-Native foster family. They can only avoid this process if there’s good cause not to put the kids with someone from their extended family or tribe.
But in many states, the law is not fully enforced. An NPR investigation in 2011 found that more than half of the kids in the South Dakota foster care system were Native American and almost 90 percent of the Native American children in foster care were placed in non-Native homes. Often, social workers revoked a parent’s custody of their child with very little supporting evidence.
“It’s gotten to the point where the exception now swallows the rule,” Matthew Newman, an attorney at the Native American Rights Fund, told Fusion. “We’re often finding states inventing any reason under the sun…not to place child with their family.”
Responding to cases like these, the federal Bureau of Indian Affairs published guidelines and proposed new regulations in February that would reinterpret ICWA to limit that exception, narrowing what can be considered "good cause" to put Native American kids in non-Native foster families.
These proposed regulations have angered opponents of the bill, including the lucrative adoption industry. Since the regulations were proposed, multiple lawsuits have been filed around the country challenging ICWA: A lawsuit filed in Virginia in May challenges the new federal guidelines; another class action lawsuit filed in Arizona by the conservative Goldwater Institute last week alleges the entire law violates the 14th Amendment because it discriminates against Native American children. A third lawsuit in Minnesota challenges a state law similar to ICWA.
“What if a child is in a truly harmful situation and the law, which is designed to eradicate bias, poses such a high bar to removal that it makes a child disproportionately subject to harm?” asked Mark Fiddler, a lawyer who’s challenging the Minnesota law. Citing higher rates of rape and alcohol abuse in Native American communities, he argued that ICWA and similar state laws are being “misused to keep children in Indian homes in circumstances where they shouldn’t be.”
The days when Native kids were snatched from their homes by the hundreds are over, opponents say, and ICWA now puts the tribe’s interest above the child’s. “It’s an issue of why should Indian children be treated differently than everybody else in the country,” Laurie Goldheim, a former president of the American Academy of Adoption Attorneys, a plaintiff in the Virginia case, told Fusion.
Tribal officials and advocates say that doesn’t make sense. They point out that the law protects Native American kids from being removed from their families, a practice that is still common, as the South Dakota cases show.
“The best interests of the child is to be left with their Indian relatives, from which they’ve been taken by the state,” Daniel Sheehan, the chief counsel for the Lakota People’s Law Project, told Fusion. “It’s the systematic removal of children from a minority group…The government has treaty obligations to protect the culture of the native people.”
The majority of cases where children were taken from their Native American parents were not because of abuse: In South Dakota, for example, where a majority of foster kids are Native American, only 11.6 percent of kids were removed from their homes because of physical abuse—lower than the national average of 16.1 percent, as NPR’s investigation noted. Social workers often cite “neglect,” a label, tribes say, that is usually just poverty and can be tinged with cultural bias.
Some Native Americans who were adopted and removed from their families are speaking out, such as Roger St. John, who was taken from his family in South Dakota to a white family in New York City with no paperwork in 1966. “We were brought up without our culture, which took a terrible toll on our lives,” St. John told the news website Indian Country Today. “I grew up angry and miserable…It wounded me to my soul, because I felt no one was there for me.”
Both sides say there’s a good chance that these lawsuits could eventually make their way to the Supreme Court. The Court has heard cases involving ICWA in the past, including a 2013 case in which the justices limited how the law applied to unwed fathers without custody when mothers voluntarily put their child up for adoption. But the Court did not make a decision about the constitutionality of the law itself.
For now, the recent lawsuits have politicized debate over what is, for most of the country, an obscure and technical law. “There’s a new kind of venom to what a lot of these folks are saying, that ICWA is a racist, unconstitutional law that violates the rights of children,” Newman said. “It’s really transformed the debate in child welfare circles.”
The Goldwater Institute’s backing of the Arizona lawsuit was especially surprising for Native American advocates. The institute typically focuses on small government and states’ rights issues—according to a search of its website, this seems to be the first time it has ever gotten involved in a Native American law case. (A Goldwater spokesperson did not respond to a request for comment.)
Ironically, Barry Goldwater, the institute’s namesake and a former Arizona senator and presidential candidate, voted in favor of ICWA. “I knew Barry Goldwater—he was my friend and often came to me for advice on most tribal matters,” the bill’s sponsor, former South Dakota Senator James Abourezk, told Indian Country Today. “I wish he were alive to see this travesty because he would never approve of it, and you can quote me on that, and make sure you emphasize the word ‘never.’”
Casey Tolan is a National News Reporter for Fusion based in New York City.