The Case Against the Indian Child Welfare Act | Opinion

The Supreme Court is going to decide as early as the end of next week whether to hear the most recent constitutional challenge to the Indian Child Welfare Act (ICWA). According to the provisions of ICWA, which was passed in 1978, tribal governments have a say over where children with Indian blood are placed if there's ever a dispute over custody. In practice, this has meant that tribal governments can block that child's placement for foster care or adoption with a non-Indian family—even if no Indian family is available. Last year, the U.S. Court of Appeals for the Fifth Circuit affirmed, by a divided vote, the district court's judgment that ICWA's preference for adoptive placement with other Indian families violates the equal-protection component of the Fifth Amendment.

Leaving aside for a moment the constitutional question, it is worth asking if ICWA has succeeded on a pure policy level: Has it, in fact, advanced the welfare of Indian children? The answer is a resounding no.

Anyone who follows these cases may wonder why it is that so many Native children end up staying in a non-Native foster home for years at a time, bonding with the parents, only for an Indian family to be found on the other side of the country, necessitating authorities ripping young children away from the only family they have ever known.

Nor is it just the cases that make the headlines. Take the Cliffords, a Minnesota couple who took in a five-year-old. More than two years later, the child was taken away to be adopted by a grandmother who had previously been denied placement. Or the Blacks, a Wyoming couple that had taken in two half-siblings (an eight-year old and two-month-old), and cared for one for four years and the other for eight years, before the boys were placed with an aunt they didn't know.

The reason for these outcomes is actually in the math. Take Minnesota, which has one of the largest Native populations in the country. There are about 7,800 kids in the foster care system, about a quarter of whom are classified as Native—despite the fact that Natives make up only about 2% of Minnesota's population.

Sixty percent of the Indian kids who are in foster care are placed there by a tribal agency. There is a popular misconception out there that Indian kids are being snatched from Indian families and communities by non-Natives who act out of racial bias. Indeed, this is one of the reasons that ICWA was passed in the first place—the idea that white caseworkers looked at Indian children living in poverty and removed them to white families, instead of giving them the material support they deserve.

The U.S. Supreme Court is seen in
The U.S. Supreme Court is seen in Washington, DC on February 8, 2022. MANDEL NGAN/AFP via Getty Images

Whatever the truth of that a half-century ago, these days it is often tribal members who are deciding when kids are at risk and need to be removed. But only 12.5% of the 3,200 non-relative foster homes available are Native. In other words, there are about 2,000 Indian kids in foster care and 400 Native homes to place them in.

The result is that Native kids are regularly placed with non-Native families, often for years at a time, and bond with these families. But because of ICWA's provisions designed to ensure Native children are only adopted by Indian families, it is much harder for them to find permanent homes. When Indian families are found, they are often from a different tribe, in a different state—and some of those placements are done over the objection of children's own immediate and extended family members. The trauma that results from these moves away from biological relatives is only compounded by the fact that the Native children have created strong bonds with their foster families.

Indian children are also forced to spend a much longer period of time in the foster system than their peers of other races. According to the timelines laid out in the Adoption and Safe Families Act of 1997, when children are in foster care for more than 15 of the last 22 months, states are supposed to move to terminate parental rights. A bipartisan coalition of legislators considered that a child spending as much as two years in foster care is severely detrimental to that child's well-being. Foster care, after all, is supposed to be temporary.

But thanks to ICWA, Native kids can, and do, spend much longer in care. In Minnesota, there are almost 200 Native kids who have been in care for longer than three years. That's a higher raw number than children of any other race. Taking these children away from loving families with whom they have developed secure attachments after so many years—regardless of the families' race or ethnicity—is nothing short of cruel. Any child welfare policy that produces this kind of trauma is not really a policy concerned with the welfare of a child.

Natives residing in the Fifth Circuit's jurisdiction now need not worry about the impacts of this detrimental law, but only the Supreme Court can ensure equal protections for Indian children extend across the nation by striking down ICWA.

Mark Fiddler is a progressive Democratic activist, a fellow at the Academy of Adoption and Assisted Reproduction Attorneys and a member of Turtle Mountain Band of Chippewa Indians. Naomi Schaefer Riley is a senior fellow at the American Enterprise Institute and author of No Way to Treat a Child.

The views expressed in this article are the writers' own.