That one of America’s worst laws was passed with good intentions does not diminish the suffering it has caused. Beyond broken hearts and bodies, the Indian Child Welfare Act has, as identity politics invariably do, stained American law by sacrificing individual rights to a group’s interests.
The stain is not indelible. On Monday, the Supreme Court can begin expunging it by deciding to hear a case that highlights the ICWA’s incompatibility with the Constitution’s guarantee of equal protection of the laws. The case comes from a Minnesota court that deemed the foster parents of Indian twins to be unfit, for an astonishing reason.
Congress passed the ICWA in 1978, eight years after historian Dee Brown’s book “Bury My Heart at Wounded Knee” quickened interest in the nation’s often horrific history regarding Native American tribes. Mistreatment often included compulsory assimilation of Indian children into the nation’s majority society. As an advocate of compulsory assimilation infamously said, “Kill the Indian” in order to “save the man.”
In 1978, Congress tried to make amends by being respectful of tribal identities. It made a mess.
For more than a year, Nathan and Kellie Reyelts demonstrated their respectfulness — learning the language of the twins’ tribe, and tribal customs — as foster parents for Indian fraternal twins who, because of severe prenatal drug exposure, need serious ongoing care at the Mayo Clinic. But a state court has decreed that the Reyeltses’ questioning of the ICWA’s constitutionality is “indicative” of a negative “attitude toward the importance of the children’s tribal identity.”
This decree was made when the Reyeltses objected to the twins’ being taken from them, at the behest of the Red Lake tribe, to a reservation 350 miles from the Reyeltses and the Mayo Clinic. The decree involved ignoring stringent constitutional rules against policies involving race- and national-origin-based classifications.
The ICWA has repeatedly been implemented not to serve “the best interest of the child” — the national standard regarding non-Indian children — but to serve tribal interests determined solely by the tribes. Hence a 6-year-old girl was taken from her adoptive family — the only family she had ever known — because a great-great-great-great-grandparent was Choctaw.
A California court has said that “children are not dogwood trees, to be uprooted, replanted, then replanted again.” But they often are so treated in obeisance to the ICWA’s race-based binary of “Indian” and “non-Indian” children. The former, subject to tribal jurisdictions less protective than states’ laws, are often more abused, and for longer.
In custody cases, tribes talk about a child’s “cultural identity,” but biology is determinative. Different tribes have different criteria concerning eligibility for membership. But no criteria require consideration of cultural, social, political or linguistic connections to a tribe. Given the primacy of race in the ICWA’s adoption restrictions, children deemed “Indian” must be adopted by “Indian families,” regardless of tribe.
America’s foundational premise is that each individual’s natural rights merit protection from other individuals, and governments. The ICWA’s premise is that this tenet is unsuitable for Native Americans. They should be subsumed into a collectivity, not treated as individuals, lest their cultural identity be diluted.
The idea is that individualism is somehow unsuitable for Native Americans, so tribalism, semi-enforced by the U.S. government, is suitable. Timothy Sandefur of the Goldwater Institute, which is representing the Reyeltses, understands the pedigree of such thinking: the myth of the Noble Savage. Indians are too savage for modernity, and too noble to care.
Federal law can legitimately help tribes preserve their identities — within constitutional limits. Not by, for example, forbidding tribal members to marry outside the tribe. But the ICWA has been implemented to prevent parents from agreeing to have their children adopted by non-Indians. This support for tribal identities ignores the rights of American citizens, which all Indians have been since passage of the 1924 Indian Citizenship Act.
The ICWA has subjected Indian children to less stringent legal standards than those that protect non-Indian children from neglect and abuse. In 2015 and 2022, this column detailed sickening examples of Indian children fatally abused by Indian adults: These children’s sufferings could not be stopped by state officials, whose authority was superseded by the ICWA.
In 1943, when American citizens of Japanese descent had ample reason to fear their government, the Supreme Court said: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people.” Hence, the ICWA is too.
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