A LAW KEY to preventing state welfare agencies from separating Indigenous children from their families is at risk of being overturned thanks to the yearslong effort of a network of libertarian and right-wing organizations.
In the 1970s, between a quarter and a third of Indigenous children across the United States had been removed from their homes. Social services often cited neglect or deprivation — euphemisms for poverty — as grounds for placing children in the custody of non-Native families and institutions, offering birth parents little opportunity for redress. Congress passed the Indian Child Welfare Act in 1978 in order to reform a system designed to destroy Indigenous people.
Last October, a U.S. district judge in Texas declared the law unconstitutional under the Fifth Amendment’s equal protection clause, arguing that it creates a separate set of practices for a so-called racial group. The federal government and four tribes appealed the decision, which is currently pending before the U.S. 5th Circuit Court of Appeals. If the ruling is upheld and the case makes its way to the Supreme Court, it could not only upend protections for the nation’s most vulnerable children, but also undermine a foundational concept of Indian law: that to be Indian is political, not racial.
The campaign against the Indian Child Welfare Act fits into a wider right-wing effort to legally challenge civil rights-era gains that have remained instrumental in shielding marginalized communities from America’s foundational systems of discrimination and genocide.
Leading the charge against the law is the Goldwater Institute, which brands itself as a “free-market public policy research and litigation organization” that supports limited government and private property rights. The institute has participated in 12 cases challenging ICWA in the last five years. The Texas decision is its biggest victory yet. The Cato Institute and the Project on Fair Representation, founded by the strategist responsible for two major Supreme Court cases challenging affirmative action and the Voting Rights Act, also filed briefs in the Texas case.
Tribal leaders, child advocates, and attorneys specializing in Indian law worry that if the Texas ruling is upheld, it could open the door to constitutional challenges of a range of federal laws based on Native American tribes’ political relationship with the U.S. government, including the Major Crimes Act, which establishes the federal government’s law enforcement role on reservations; the Indian Gaming Regulatory Act, which governs casinos on tribal land; federal policies that allow tribes to regulate the oil and gas industry; and programs that offer housing and health care to Native American communities.
Timothy Sandefur, Goldwater’s vice president for litigation, claims that the Texas decision is “a major step forward for the rights of Indian children in this country and their parents.” But 31 child welfare organizations disagree, writing in an amicus brief that ICWA “both embodies and has served as a model for the child welfare policies that are best practices generally.”
Shannon Smith, executive director of the ICWA Law Center in Minnesota, rejects Goldwater’s assertion that taking down ICWA would be good for children. “This is very misguided, and the potential impacts to Indian children and their connection to families and tribes could be devastating.”
The U.S. government’s efforts to “kill the Indian, save the man” via removal of Native children from their communities dates to the opening of the Carlisle Indian Industrial School in 1879. Hundreds of thousands of children were placed in institutions where they were typically not allowed to speak their language or practice their culture. Later, the Indian Adoption Project placed hundreds of Native children in the custody of white families between 1958 and 1967.
In a remarkable series of Senate hearings in 1974, family after family described children who were disappeared by the state with no notice or court hearing, welfare agents repeatedly requesting that mothers give up their newborns, and kids making plans to hide if child services showed up to take them away.