Fifth Circuit Will Reconsider Constitutionality of ICWA’s Race-Based Burdens by Timothy Sandefur

The Fifth Circuit Court of Appeals announced on November 7 that it will rehear a case called Brackeen v. Bernhardt that weighs the constitutionality of the Indian Child Welfare Act (ICWA). Adopted in 1978, ICWA was written in response to concerns that Native American children were being unjustly taken from their parents by social workers nationwide. But it also imposes a set of rules on states in child welfare cases involving Native children—rules that actually make it harder to protect these kids against abuse and neglect.

Last August, the Court of Appeals reversed a District Court decision that struck down ICWA on the grounds that it created an unconstitutional racial classification and intruded on state authority. The Court of Appeals ruled that ICWA is not race-based, and that it does not “commandeer” state agencies because its requirements apply equally to both private and public parties. Now the en banc court will reconsider that decision—and that’s a welcome step, given that ICWA not only violates these and other constitutional standards, but deprives Native American children of the legal protections that are given to children of other ethnicities.

ICWA is unique among federal statutes in that it is never enforced by federal officials—only state officials. It forces state child welfare officers and state courts to follow a different set of rules in cases involving the welfare and safety of Indian children—different, that is, from state law. We’ll get to the definition of the term “Indian child” later, but for now, note that ICWA does not apply to tribal governments—only to state officials and state court proceedings involving children who do not reside on reservations. And the rules ICWA imposes are, amazingly, less protective of these children than state law.

ICWA’s Substantive Requirements

If a white or black child is taken into state custody as a consequence of parental abuse or neglect, the state may place her in foster care with a qualified family, regardless of race. But ICWA requires that Indian children be placed in foster care with other “Indians”—even if they are from different tribes—instead  of with white, black, Asian, or Hispanic families.

Another difference: When states must permanently separate a child from abusive parents, they do so through a “termination of parental rights” (TPR) proceeding. For children of most ethnicities, the standards for TPR work this way: State law sets out the circumstances under which TPR is appropriate, and those circumstances must be proven by “clear and convincing evidence.” The “clear and convincing” standard was mandated by Santosky v Kramer, which chose it after rejecting both “preponderance of the evidence,” as making it too easy for states to take kids from their parents, and “beyond a reasonable doubt,” as creating “an unreasonable barrier to state efforts to free permanently neglected children for adoption.”

But ICWA imposes that extreme “reasonable doubt” standard in cases involving Indian kids. In fact, it goes further. States must not only prove “beyond a reasonable doubt” that an Indian child faces “serious emotional or physical damage” before TPR can be approved, but must do so with expert witness testimony. That’s a more burdensome standard than applies in criminal cases. Since TPR is necessary in most cases before a child can be adopted, this requirement makes it extremely difficult to find adoptive homes for Indian children.

ICWA also imposes a requirement known as “active efforts,” under which states must prove that they’ve undertaken “active efforts” to reunify a child with his or her parents before TPR may proceed. ICWA doesn’t define “active efforts,” but courts have ruled that it requires something more than the “reasonable efforts” that apply to non-Indian children under federal and state law. Most significantly, “reasonable efforts” are not required in cases where kids are subjected to “aggravated circumstances,” such as molestation. But ICWA’s “active efforts” requirement does apply in such cases. This means Indian children must be subjected to more abuse, for longer, than non-Indian children, before states can intercede on their behalf.

And it’s not just states. Although ICWA was enacted to rein in abuses by state child welfare agencies, courts have ruled that it applies even where no state agency—or even no private agency—is involved. In other words, even in private disputes between family members, or cases in which Indian parents want their children to be adopted, ICWA stands as a barrier. In In re S.S., the Arizona Court of Appeals held that a Native American father who wanted to terminate the parental rights of his neglectful ex-wife could not do so because under ICWA, he was required to make “active efforts” to reunite the children with their mother. Of course, the reason he did not do this was precisely because he considered her neglectful. In the Washington case In re T.A.W., a non-Indian abusive father was allowed to use ICWA to bar his Indian ex-wife from terminating his parental rights, because she had not made “active efforts” to reunite him with the child.

It’s common for ICWA to block Indian parents from making choices about their children’s welfare. In the Brackeen case, the parents expressed their desire that their son be adopted by the foster parents he’s lived with for virtually his entire life. Nevertheless, tribal officials invoked ICWA to block that adoption. The US Supreme Court has held that biological parents have a “fundamental right” to make decisions regarding the upbringing of their children, and that the government may not elevate the rights of any third party above the decisions of parents. Yet the Court has also noted that ICWA gives tribal governments “an interest in the child which is distinct from but on a parity with the interest of the parents.”

Finally, ICWA imposes race-based restrictions on the adoption of Indian children. It requires that “preference” be given to “other members of the Indian child’s tribe” or “other Indian families,” which means that an “Indian child” must be placed with “Indians”—again, regardless of tribe—before she may be placed with white, Asian, Hispanic, or black adults. As the California Court of Appeal observed, this reduces the availability of adoptive homes for Indian children, placing them at a substantial disadvantage when they are most in need.

Procedural Limits

ICWA also imposes anomalous procedural rules on cases involving Indian children. For example, it forces state courts to transfer these cases into tribal courts—even if the child has never even visited tribal lands. This often conflicts with the constitutional rules governing personal jurisdiction.

In In re C.J. Jr., for example, a tribal court in Arizona issued an order commanding that an Ohio child who had never been to Arizona, but whose birth father claimed to be a member of the tribe, be taken from his Ohio foster parents and sent to live on the tribe’s Arizona reservation with adults he had never met. The Ohio Court of Appeals later ruled that the tribal court had no jurisdiction, rejecting the tribe’s claim “that C.J., Jr.’s status as an Indian child subjects him to the personal jurisdiction of the tribal court.” In another California case, a tribal court in California ordered that three children whose parents died in a traffic accident be removed from the non-Indian relatives who had taken them in and given to tribal-member relatives instead.

ICWA’s requirement that off-reservation Indian children be subjected to tribal courts jurisdiction is, in theory, subject to an important qualification: state courts can refuse transfer if there is “good cause.” But state courts have also ruled that “the best interest of the child”—the standard that is typically considered the “lodestar” of child welfare cases—does not constitute “good cause.” Indeed, some state courts, including California and Texas—where the Brackeen case originated—have declared that there are two “best interest” standards: one for non-Indian children, which prioritizes the specific needs of that particular child, and a separate “Indian” standard, under which the child’s individual circumstances are (in the words of the California Court of Appeal) only one of the “constellation of factors” to be considered. This division of the “best interest” standard into two is, literally, “separate but equal.”

Is ICWA Race-Based?

The most contentious issue in Brackeen is whether ICWA creates a race-based classification, subject to strict scrutiny. In Morton v Mancari, the Supreme Court upheld a federal law that gave hiring preferences to tribal members at the Bureau of Indian Affairs, on the theory that distinguishing between tribal members and nonmembers creates a nonracial “political” classification, subject to rational basis review. Yet Mancari expressly reserved judgment about laws “directed towards a ‘racial’ group consisting of ‘Indians.’” Defenders of ICWA contend that it too creates only a “political” classification.

But ICWA defines “Indian children” as children who are either tribal members or who are “eligible for membership in an Indian tribe and [are] the biological child[ren] of . . . member[s].” Different tribes have different eligibility criteria, but all are biological—Navajo, for example, requires a person to be 25% Navajo; Gila River requires a person to be 25% Indian (not necessarily Gila River); Choctaw requires that the person be a lineal descendant of a signer of the Dawes Rolls. Only biological factors count—and the second half of the definition even prohibits children who are adopted by tribal members from qualifying as Indian children.

As a result, a child who is fully acculturated to a tribe—speaks a tribal language, practices a Native religion, lives on reservation—would not qualify as “Indian” under ICWA if he or she fails to meet the biological standard. But a child who does meet that biological standard would qualify, even if she has no cultural, religious, or political connection with the tribe—as in the 2016 “Lexi” case.

The District Court in Brackeen therefore concluded that ICWA creates a racial classification—that it is “directed towards a ‘racial’ group consisting of ‘Indians’” and is outside the reach of Mancari’s rational basis rule. The Fifth Circuit reversed that ruling, however, on the grounds that ICWA’s definition of “Indian child” uses biological factors as “a proxy” for the child’s “not-yet-formalized tribal affiliation,” and therefore still falls within the Mancari rule.

The problem with that reasoning is that using biological factors as a proxy for a future political affiliation is the same thing as creating a national origin classification, which is subject to the same strict scrutiny that applies to racial classifications. To assume that someone’s biological ancestry makes her eligible for membership in a political association, and to treat her differently on that basis, is by definition national-origin discrimination. The Supreme Court has held that the term “national origin” refers not just to a person’s foreign citizenship, but also to classification based on “the country from which his or her ancestors came.” Thus in Oyama v California, it struck down California’s Alien Land Act because that act differentiated between “the citizen children of a Chinese or English father, and the citizen children of a Japanese father.” The same is true of ICWA: It treats Indian children—who are, of course, US citizens—differently from other American kids whose ancestry is non-Native. Indeed, it treats them worse.

ICWA was passed with good intentions: to prevent the abuses that had too often resulted in children being wrongfully taken away from their parents. But as often happens, it went too far, and today it stands as a barrier to efforts to protect Indian children from harm. This is especially troubling given that these kids are at greater risk of abuse, neglect, drug use, alcoholism, molestation, suicide, and poverty than virtually any other demographic. However important it may be to preserve America’s tribal cultures, the welfare of individual children should always be our highest priority. For their sake, it is to be hoped that the Fifth Circuit strikes down ICWA’s race-based burdens and requires the government to extend these children the same protections it gives to children of all other races or national origins.

Timothy Sandefur is Vice President for Litigation at the Goldwater Institute, and author, most recently, of Recent Developments in Indian Child Welfare Act Litigation: Moving Towards Equal Protection?, 23 Tex Rev L & Pol 425 (2019).


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