Paul,
That is an assumption on your part. True, I'm white, but that isn't where my
self identification is. True, I don't know what kind of person I'd be if
I'd been born African American, or a man, or fully sighted. I do know that I
tend not to see things from the point of view of the priveleged majority.
Miriam
-----Original Message-----
From: blind-democracy-bounce@xxxxxxxxxxxxx
[mailto:blind-democracy-bounce@xxxxxxxxxxxxx] On Behalf Of Paul Wick
Sent: Tuesday, April 19, 2016 1:15 PM
To: blind-democracy@xxxxxxxxxxxxx
Subject: [blind-democracy] Re: Why a Conservative Legal Organization Is
Desperately Trying to Kill the Indian Child Welfare Act
Miriam,
I would wager that you wouldn't feel the same way if you were not white.
Also there is a vast difference between taking someone out of a an adoptive
home when the child is a year-old versus five years old. This is where the
age-old balancing test of the best interest of the child comes in.
Paul
Sent from my iPhone
development is influenced by present circumstances.
-----Original Message----- From: Miriam Vieni
Sent: Saturday, April 9, 2016 7:13 AM
To: blind-democracy@xxxxxxxxxxxxx
Subject: [blind-democracy] Why a Conservative Legal Organization Is
Desperately Trying to Kill the Indian Child Welfare Act
While there have been terrible historical practises, related to
removing children from their indigenous families in the past, I think
there is a real ethical question that, as an adoptive parent and
someone who worked in the fieled, the typical leftist position is not
confronting. If one looks at an individual child's life, welfare, and
opportunities, does the right of the ethnic or racial group into which
he or she was born, take precedence over a currently available, loving
secure family environment, even if that family is of a different race
or cultural background? A child experiences life in the present and his
Suppose the home of the child's racial or cultural dbackground cannotdead."
provide love and security. What choice should be made for that child ?
Miriam
Israel writes: "Last July, the Goldwater Institute waded into Indian
law. It did so in the form of A.D. v. Washburn, a federal class action
challenge to the Indian Child Welfare Act."
(illustration: Anton Folton/Dylan Petrohilos)
Why a Conservative Legal Organization Is Desperately Trying to Kill
the Indian Child Welfare Act By Josh Israel, ThinkProgress
08 April 16
ay 2013: The Spirit Lake Sioux tribe used the Indian Child Welfare Act
(ICWA) to remove Laurynn Whiteshield and her twin sister from the
foster family that had raised them for two years. They were sent to
live on the reservation."
Those words, along with ominous chords and images of a maroon sky over
North Dakota's Spirit Lake Indian Reservation, begin a nearly
11-minute video on the EqualProtection.org website. Moments later,
accompanying images of a smiling child, we learn the young girl's
fate: Just 37 days after her return to the reservation, "Laurynn was
Whiteshield's step-grandmother told the FBI she pushed the almostWalton.
three-year-old down an embankment to her death, citing depression.
But, the video argues, the real culprit is the Indian Child Welfare
Act (ICWA), a law they claim undermines the constitutional rights of
Native American kids and treats the child as a "pawn in terms of
maintaining the enrollment numbers of the Indian tribe."
Despite what the URL might indicate, the video and site do not belong
to an organization with a long history of pushing to expand civil
rights protections to minority groups. Rather, they are part of a
campaign by the Goldwater Institute - a conservative legal
organization mostly known for its anti-government and pro-property
rights work - aimed at eliminating ICWA, a
1978 federal law designed to protect Native American kids from more
than 100 years of government-mandated assimilation. That legislation
established tougher requirements for removing Native American children
from their biological families and gave federally recognized tribes
control over the adoption and custody processes for their citizens' kids.
A National Leader For Constitutionally Limited Government The
nonprofit - officially the Barry Goldwater Institute for Public Policy
Research - was created in 1988 in honor of libertarian/conservative Sen.
Barry Goldwater (R), whose son serves on its board. The organization,
which is located in Goldwater's home state of Arizona, describes
itself as a "national leader for constitutionally limited government."
It has an annual budget of about $5 million and donors including
foundations connected to hedge fund millionaire Robert Mercer,
petrochemical billionaire Charles Koch, and the late Walmart founder Sam
The tax-exempt conservative legal organization is best known for itsAmerican children.
work against government regulations on businesses and for private
property. It successfully sued to overturn Arizona's clean elections
law, pushed to ban public sector unions, worked to kill renewable
energy standards, and sought to overturn a 142-year-old precedent to
stop state governments from prohibiting unsafe "fish pedicures."
Last July, however, the Goldwater Institute waded into a very
different
area: Indian law. It did so in the form of A.D. v. Washburn, a federal
class action challenge to ICWA, claiming it violates the Fifth
Amendment's equal protection and due process guarantees, the
Fourteenth Amendment's equal protection and substantive due process
clauses, the First Amendment's freedom of association, and the Tenth
Amendment's limits on congressional power, among others.
In short, they argue that ICWA treats people differently based on
their race and that this treatment actually hurts those children.
Goldwater Institute attorney Aditya Dyner told ThinkProgress that the
law provides "separate, unequal, and substandard treatment" for Native
The irony, supporters claim, is that Goldwater himself supported the law.against ICWA.
"He'd be rolling over in his grave," Robert A. Williams Jr., faculty
co-chair of the Indigenous Peoples Law and Policy Program at the
University of Arizona College of Law and a former Pascua Yaqui Indian
Tribal judge, said, if he knew his namesake organization was fighting
Kill The Indian, Save The Childwhite families.
Shannon Smith, executive director of the ICWA Law Center in
Minneapolis, explained that the law was created in the wake of
devastating "kill the Indian, save the child" practices designed to
"educate the Indian out of a child." Beginning in the 1860s, this was
accomplished through government-run boarding schools for Native
American kids. The goal of the schools was to "deprive [Indian kids of
their] language, cultural practices, and spirituality," so they could
be assimilated into mainstream American society. By the 1880s, more
than 6,000 Native American students were enrolled in these schools.
In the 1950s, the federal government and nonprofit groups joined
forces to move hundreds of Native American children into the homes of
This so-called Indian Adoption Project was rooted in the sameconsequences."
culturally destructive belief as the boarding schools, Shannon Smith
said: "If you could remove children from families, they would be
better off, have a better way of life, [and] a better future."
Not only were Native American kids losing their language, customs, and
cultural heritage, but tribes were losing their future members. "By
1978, tribes recognized these practices were destroying the ability of
tribes to continue to exist," she added.
The Goldwater Institute's Dyner agrees that this historical context
was devastating. "There were certainly abuses, particularly abuses by
the federal government," he said. "There is a lot of evidence that,
proximate to federal boarding school policies, those policies had serious
These abuses and consequences were very much on the minds of membersinstitutions."
of both parties in Congress in 1977 and 1978, when they enacted the
Indian Child Welfare Act.
They spelled out their findings in the text of the law itself,
affirming that protecting Native American children is "vital to the
continued existence and integrity of Indian tribes," and that "an
alarmingly high percentage of Indian families are broken up by the
removal, often unwarranted, of their children from them by nontribal
public and private agencies and that an alarmingly high percentage of
such children are placed in non-Indian foster and adoptive homes and
Smith says Congress was making it clear that "things needed torights are terminated.
change." The law recognized that "for tribes, the children were their
most valuable resource," but also that "it was in the best interest of
Indian children to have a connection with their families and tribes."
But the Goldwater Institute takes issue with the way ICWA set
standards for "the removal of Indian children from their families and
the placement of such children in foster or adoptive homes." It
applies specifically to unmarried minors who are either members of
federally recognized tribes or are the biological child of a member of
a tribe (and are thus "eligible for membership" themselves).
The act gives tribes exclusive jurisdiction over child custody for
most Native American children living on reservations, mandates that
placement of Native American children be with extended family, other
members of the child's tribe, or other Native American families when
possible, and requires that "active efforts" to remedy a situation be
made before an Native American child is placed in foster care or parental
Matthew L.M. Fletcher, who directs the Indigenous Law and Policychildren."
Center at the Michigan State University College of Law says the key
function of ICWA is that it "gives tribes a chance to have a say in
what happens to their kids." He notes that the due process
requirements it provides have been held up by child welfare advocacy
groups as "the gold standard for child welfare decisions for all
Angel Smith, a seventh-generation Cherokee tribal citizen fromidentity, culture, and heritage.
Oklahoma boundary, has experienced the life-changing ramifications of
ICWA first-hand. As a young child, her birth parent was unable to care
for her and left her at a private agency shelter. For the first
several years of her life, she was placed with a non-Native American
foster family. Though she very much liked her foster family, the
Indian Child Welfare Act allowed the tribe to block them from
permanently adopting her. Returned to her biological family, she ended
up living with her maternal grandparents, who helped her understand her
"The connection with my Cherokee family absolutely was critical and isAmerican children were adopted in 2012.
for me," she said. "It's informed pretty much every part of my life,
being Cherokee."
While the law was initially created to right grievous historical
wrongs, Smith and many of ICWA's other proponents argue the
protections remain a necessity today. Native American children only
make up a small portion of the total U.S. population, but they are
more likely to be impacted by adoption and foster care policies than
their peers in most other demographic groups. More than 800 Native
American Indian and Alaskan Native children are over-represented inexpected level.
the nation's foster care system. As of September 2014, 9,517 Native
American children were in foster care. While this number represents
only two percent of the foster care population, the number of Native
American children in the system is disproportionately higher than the
Some states see even higher ratios. In Oregon, between 2009-2011,Native Americans.
Native American children represented 2.8 percent of the state's
children, but 6.9 percent of all children in foster care. In South
Dakota and Alaska, more than half of all children in foster care are
Native American children are also more likely to experience hardshipthe foster care system.
in these circumstances. According to the Pew Charitable Trusts, Native
American children are more likely than children of other
races/ethnicities to be identified as victims of neglect (65.5 percent) in
Child abuse among American Indian and Alaskan Native children occursbased on his blood heritage."
at a rate of 16.5 children per thousand, which is greater than the
percentages for white (10.8 per thousand), Hispanic (10.7 per
thousand), and Pacific Islander (16.1 per thousand) children.
While these statistics point to the work that still needs to be done,
advocates say they've seen substantial improvement from just a
generation ago, when public policy affirmatively sought to separate
Native American families.
If that's the case, then why is the Goldwater institute hell-bent on
overturning it? And what would happen if they succeeded?
Taking ICWA To Court
Baby A.D. is a one-year-old in Arizona, born into the Gila River
Indian Community. From the time of her birth, she was placed with a
married couple who are not Native Americans as foster parents. After a
state court terminated her birth family's parental rights, the couple
petitioned to legally adopt her. But her tribe soon indicated it would
seek to transfer jurisdiction over her custody proceedings from the
state court to a tribal one.
The Goldwater Institute, representing the couple and others in similar
situations, says the tribal court could prevent A.D. from being
adopted by her foster parents - the only family she has ever known.
Their class action challenge to the law is currently pending before a
federal district court in Arizona.
Three years ago, a different ICWA challenge - Adoptive Couple v. Baby
Girl made it all the way to the U.S. Supreme Court. In that case, a
child's birth father - a member of the Cherokee Nation - invoked ICWA
months after he had signed papers relinquishing his parental rights
and the birth mother had placed her with another family. After the
South Carolina Supreme Court awarded him custody of the
then-27-month-old girl, based on its interpretation of the law, the
adoptive couple appealed the ruling to the nation's highest court. In
addition to challenging the application of the law, they argued that
it unconstitutionally gave the birth father "preferential custodial rights
Although the Goldwater Institute was not involved with AdoptiveGeorge W.
Couple, another big name in the conservative legal movement was: Former
Bush administration Solicitor General Paul D. Clement represented theorder."
guardian ad litem assigned to the baby girl. He argued that the
application of the law raised "constitutional concerns of the highest
That case, which was the subject of a RadioLab episode and covered byobserved.
some national news outlets, resulted in a victory for the adoptive
couple - on a technicality.
The high court's majority sidestepped the constitutional question,
determining that ICWA did not apply to this particular case, and
passed on a chance to examine what would happen if it did. Still,
Justice Clarence Thomas wrote that the case had presented "significant
constitutional problems," and Justice Samuel Alito suggested that a
similar case could conceivably force them to strike ICWA down.
Barbara A. Atwood, professor of law emerita at the University of
Arizona's James E. Rogers College of Law, said that language is what
caught the Goldwater Institute's interest. In choosing to represent
plaintiffs in a similar, but not identical, position, they are
"basically responding to an invitation from the Supreme Court," she
Since the ratification of the Fourteenth Amendment in 1868, the U.S.for white kids would be very hard to justify.
Supreme Court has, for the most part, gradually expanded its
definition of equal protection. Laws that discriminate on the basis of
race are examined with the most rigorous level of "strict scrutiny,"
allowing them only when there is a compelling government interest.
Laws that discriminate against other protected groups receive
intermediate scrutiny. Laws discriminating on some other grounds -
such as whether a person has a college degree or has training as a
dentist - must only be rooted in rational basis. As such, an adoption
law that created a different set of rules for African American kids than
But one's membership in a federally recognized tribe has long been"with the Indian tribes."
treated as a political classification, rather than a racial one - so,
for the most part, the Supreme Court has deferred to Congress when it
makes laws relating to Native American tribes. Christopher R. Deluzio,
a New York attorney who has written about tribes and race says this is
because they are "quasi-sovereign." Because federally recognized
tribes have a government-to-government relationship through treaties,
he says, the high court has viewed Congress' power to legislate tribal
matters as "nearly plenary." What's more, Article I, Section 8 of the
Constitution contains what is known as the Indian Commerce Clause, a
provision that explicitly gives Congress the power to regulate commerce
The Goldwater Institute does not believe that clause applies here.Amendment."
Timothy Sandefur, the organization's vice president for litigation,
compared it to congressional power to regulate commerce with foreign
countries: "Imagine if you said, If you have a single drop of Chinese
blood." he suggested. "It would be obviously a violation of the Fifth
Williams thinks that Goldwater is unlikely to convince the Supremeconquered."
Court to treat Native American tribal affiliation as a racial
category, based on its previous rulings. "There is no African American
Commerce Clause. There is no Jewish Commerce Clause. There is an
Indian Commerce Clause, as the founders singled out Indians as a
discrete type of racial 'problem'. What's unique to Indians as a race
[in the United States] is that they are the only race that have been
A Job Well Done?still needed.
Since ICWA passed, proponents and critics of the law generally agree
that most states no longer intentionally remove Native American kids
from their homes without cause - but they disagree on whether the law is
"In this case, there has been no evidence for the past 30 to 40 yearscareful,"
that states have willfully disregarded the equal protection and due
process rights of Indian children. If anything, states are extremely
Goldwater's Dyner said.custody, failing to follow ICWA's procedure.
But while they suggest that ICWA has already done its job, the numbers
seem to contradict that. In Alaska, for example, Alaska Natives make
up only 20 percent of the youth population, but constitute 63 percent
of the children in foster care and state custody.
Kathryn E. Fort, who works with Fletcher at MSU's Indigenous Law and
Policy Center, agrees. "I think what ICWA has done is given a
backstop, in many ways, to the worst abuses," she said. But recent
problems in South Dakota, for instance, are proof that there are
"still counties where they're just not following the law." Last March,
a federal judge found that state officials had improperly removed
scores of Native American children in one county from their parents'
If the Goldwater Institute's challenge is successful, not only willdiscrimination.
the strongest tool to stop those kinds of discrimination be taken away
- so might a whole host of other laws.
The Latest Front In A Larger Battle
In recent years, the conservative legal movement and the Roberts Court
have been working to strike down laws that were created to remedy
In 2013's Shelby County v. Holder case, the Supreme Court's majoritysystem.
claimed that while minority voters were once disenfranchised, "our
country has changed, and while any racial discrimination in voting is
too much, Congress must ensure that the legislation it passes to
remedy that problem speaks to current conditions." As such,
protections like the preclearance provisions of the Voting Rights Act
are no longer constitutional. In 2007, it struck down an enrollment
plan aimed at desegregating the Jefferson County, Kentucky public school
In December, it heard arguments in Fisher v. University of Texas atorientation."
Austin, a case that could end affirmative action in university
admission. Though the court punted in the same case in 2013, at least
one justice made clear that he was prepared to strike down an earlier
ruling upholding affirmative action in very limited situations.
Among those supporting both efforts: the Goldwater Institute. The
University of Arizona's Barbara Atwood notes that "the Goldwater
Institute has been very involved in promoting anti-affirmative action
provisions across the country and were supporters of Arizona's
constitutional amendment banning preferences on the basis of race or
gender in public institutions. I think this does fit into that policy
The organization also filed a brief in the Voting Rights Act case,Democratic appointee.
opposing key provisions of the law, and argued in a press release
that, "now that active state-sponsored racial discrimination has
obviously waned, preclearance only encases politics in the very racial
and ethnic divisions it was designed to prevent."
But Michigan State University's Fort sees this case as part of the
broader effort to eliminate protections for minority groups that was
gaining steam prior to Justice Antonin Scalia's death. "If you can
make Indians just like any other race-based group and you're already
getting rid of all remediation for race-based groups," they can wipe
out a whole array of laws. This strategy, many experts pointed out,
may be harder on the current eight-member court or one with a fifth
The University of Arizona's Williams said the high court would have todown ICWA.
upend "an entire body of law - federal Indian law," in order to strike
He points to a 1974 case in which the Supreme Court held that in orderactual membership.
to apply equal protection to Indian law, it would also have to throw
out "literally every piece of legislation dealing with Indian tribes
and reservations, and certainly all legislation dealing with the
[Bureau of Indian Affairs]."
The Goldwater Institute's Sandefur dismissed suggestions that its case
could have a huge impact on other Indian law. "We're talking about a
statute that applies due to eligibility for membership, as opposed to
Other cases all make clear that we're talking about a law that onlychallenge.
addresses people who have chosen to be members of tribes."
But if the Supreme Court accepts the organization's argument that it
must treat Native American tribes as a racial classification, other
Indian laws could be subjected to renewed scrutiny. For example,
Indian Gaming Regulatory Act of 1988, which gives tribes special legal
protections for their gambling casinos, could be newly vulnerable to
And that could be a financial motivation for some ICWA opponents. Fortribal nation."
instance, a ThinkProgress review found that former Solicitor General
Clement argued on behalf of a corporate client in another 2013 case
that the Indian Gaming Regulatory Act violated the Equal Protection
Clause - the same year he raised similar arguments in the Adoptive
Couple case. (Clement did not respond to a ThinkProgress inquiry.) But
Timothy Sandefur said the Goldwater Institute's motive is not
financial, but personal. "We have friends who are foster parents,
[including] several people at the Goldwater Institute," he explained,
"and it doesn't take very long in those circles until you're told,
basically to your face, that if you adopt an Indian child, the law
doesn't [protect the best interest of the child]."
Goldwater's Dyner is optimistic that this challenge will be
successful. He notes that the Supreme Court did not strike down the
bulk of the Voting Rights Act until the second case it heard on the
topic - and that the Adoptive Couple majority seemed open to doing the
same in a future ICWA case.
But most of the experts ThinkProgress spoke with believe the law is
constitutional and still necessary. Now an attorney specializing in
helping Native American kids, Angel Smith believes that law is vital
to protect her clients' "basic and inherent right to their family and
"This is why I do what I do," she explained, "for the sacred center ofvalid.
our Nations, our children. I am ICWA, and I support ICWA."
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dead."
(illustration: Anton Folton/Dylan Petrohilos)
http://thinkprogress.org/justice/2016/04/08/3754462/indian-child-welfa
re-act
-case-goldwater/http://thinkprogress.org/justice/2016/04/08/3754462/in
dian-c
hild-welfare-act-case-goldwater/
Why a Conservative Legal Organization Is Desperately Trying to Kill
the Indian Child Welfare Act By Josh Israel, ThinkProgress
08 April 16
ay 2013: The Spirit Lake Sioux tribe used the Indian Child Welfare Act
(ICWA) to remove Laurynn Whiteshield and her twin sister from the
foster family that had raised them for two years. They were sent to
live on the reservation."
Those words, along with ominous chords and images of a maroon sky over
North Dakota's Spirit Lake Indian Reservation, begin a nearly
11-minute video on the EqualProtection.org website. Moments later,
accompanying images of a smiling child, we learn the young girl's
fate: Just 37 days after her return to the reservation, "Laurynn was
Whiteshield's step-grandmother told the FBI she pushed the almostWalton.
three-year-old down an embankment to her death, citing depression.
But, the video argues, the real culprit is the Indian Child Welfare
Act (ICWA), a law they claim undermines the constitutional rights of
Native American kids and treats the child as a "pawn in terms of
maintaining the enrollment numbers of the Indian tribe."
Despite what the URL might indicate, the video and site do not belong
to an organization with a long history of pushing to expand civil
rights protections to minority groups. Rather, they are part of a
campaign by the Goldwater Institute - a conservative legal
organization mostly known for its anti-government and pro-property
rights work - aimed at eliminating ICWA, a
1978 federal law designed to protect Native American kids from more
than 100 years of government-mandated assimilation. That legislation
established tougher requirements for removing Native American children
from their biological families and gave federally recognized tribes
control over the adoption and custody processes for their citizens' kids.
A National Leader For Constitutionally Limited Government The
nonprofit - officially the Barry Goldwater Institute for Public Policy
Research - was created in 1988 in honor of libertarian/conservative Sen.
Barry Goldwater (R), whose son serves on its board. The organization,
which is located in Goldwater's home state of Arizona, describes
itself as a "national leader for constitutionally limited government."
It has an annual budget of about $5 million and donors including
foundations connected to hedge fund millionaire Robert Mercer,
petrochemical billionaire Charles Koch, and the late Walmart founder Sam
The tax-exempt conservative legal organization is best known for itsAmerican children.
work against government regulations on businesses and for private
property. It successfully sued to overturn Arizona's clean elections
law, pushed to ban public sector unions, worked to kill renewable
energy standards, and sought to overturn a 142-year-old precedent to
stop state governments from prohibiting unsafe "fish pedicures."
Last July, however, the Goldwater Institute waded into a very
different
area: Indian law. It did so in the form of A.D. v. Washburn, a federal
class action challenge to ICWA, claiming it violates the Fifth
Amendment's equal protection and due process guarantees, the
Fourteenth Amendment's equal protection and substantive due process
clauses, the First Amendment's freedom of association, and the Tenth
Amendment's limits on congressional power, among others.
In short, they argue that ICWA treats people differently based on
their race and that this treatment actually hurts those children.
Goldwater Institute attorney Aditya Dyner told ThinkProgress that the
law provides "separate, unequal, and substandard treatment" for Native
The irony, supporters claim, is that Goldwater himself supported the law.against ICWA.
"He'd be rolling over in his grave," Robert A. Williams Jr., faculty
co-chair of the Indigenous Peoples Law and Policy Program at the
University of Arizona College of Law and a former Pascua Yaqui Indian
Tribal judge, said, if he knew his namesake organization was fighting
Kill The Indian, Save The Childwhite families.
Shannon Smith, executive director of the ICWA Law Center in
Minneapolis, explained that the law was created in the wake of
devastating "kill the Indian, save the child" practices designed to
"educate the Indian out of a child." Beginning in the 1860s, this was
accomplished through government-run boarding schools for Native
American kids. The goal of the schools was to "deprive [Indian kids of
their] language, cultural practices, and spirituality," so they could
be assimilated into mainstream American society. By the 1880s, more
than 6,000 Native American students were enrolled in these schools.
In the 1950s, the federal government and nonprofit groups joined
forces to move hundreds of Native American children into the homes of
This so-called Indian Adoption Project was rooted in the sameconsequences."
culturally destructive belief as the boarding schools, Shannon Smith
said: "If you could remove children from families, they would be
better off, have a better way of life, [and] a better future."
Not only were Native American kids losing their language, customs, and
cultural heritage, but tribes were losing their future members. "By
1978, tribes recognized these practices were destroying the ability of
tribes to continue to exist," she added.
The Goldwater Institute's Dyner agrees that this historical context
was devastating. "There were certainly abuses, particularly abuses by
the federal government," he said. "There is a lot of evidence that,
proximate to federal boarding school policies, those policies had serious
These abuses and consequences were very much on the minds of membersinstitutions."
of both parties in Congress in 1977 and 1978, when they enacted the
Indian Child Welfare Act.
They spelled out their findings in the text of the law itself,
affirming that protecting Native American children is "vital to the
continued existence and integrity of Indian tribes," and that "an
alarmingly high percentage of Indian families are broken up by the
removal, often unwarranted, of their children from them by nontribal
public and private agencies and that an alarmingly high percentage of
such children are placed in non-Indian foster and adoptive homes and
Smith says Congress was making it clear that "things needed torights are terminated.
change." The law recognized that "for tribes, the children were their
most valuable resource," but also that "it was in the best interest of
Indian children to have a connection with their families and tribes."
But the Goldwater Institute takes issue with the way ICWA set
standards for "the removal of Indian children from their families and
the placement of such children in foster or adoptive homes." It
applies specifically to unmarried minors who are either members of
federally recognized tribes or are the biological child of a member of
a tribe (and are thus "eligible for membership" themselves).
The act gives tribes exclusive jurisdiction over child custody for
most Native American children living on reservations, mandates that
placement of Native American children be with extended family, other
members of the child's tribe, or other Native American families when
possible, and requires that "active efforts" to remedy a situation be
made before an Native American child is placed in foster care or parental
Matthew L.M. Fletcher, who directs the Indigenous Law and Policychildren."
Center at the Michigan State University College of Law says the key
function of ICWA is that it "gives tribes a chance to have a say in
what happens to their kids." He notes that the due process
requirements it provides have been held up by child welfare advocacy
groups as "the gold standard for child welfare decisions for all
Angel Smith, a seventh-generation Cherokee tribal citizen fromidentity, culture, and heritage.
Oklahoma boundary, has experienced the life-changing ramifications of
ICWA first-hand. As a young child, her birth parent was unable to care
for her and left her at a private agency shelter. For the first
several years of her life, she was placed with a non-Native American
foster family. Though she very much liked her foster family, the
Indian Child Welfare Act allowed the tribe to block them from
permanently adopting her. Returned to her biological family, she ended
up living with her maternal grandparents, who helped her understand her
"The connection with my Cherokee family absolutely was critical and isAmerican children were adopted in 2012.
for me," she said. "It's informed pretty much every part of my life,
being Cherokee."
While the law was initially created to right grievous historical
wrongs, Smith and many of ICWA's other proponents argue the
protections remain a necessity today. Native American children only
make up a small portion of the total U.S. population, but they are
more likely to be impacted by adoption and foster care policies than
their peers in most other demographic groups. More than 800 Native
American Indian and Alaskan Native children are over-represented inexpected level.
the nation's foster care system. As of September 2014, 9,517 Native
American children were in foster care. While this number represents
only two percent of the foster care population, the number of Native
American children in the system is disproportionately higher than the
Some states see even higher ratios. In Oregon, between 2009-2011,Native Americans.
Native American children represented 2.8 percent of the state's
children, but 6.9 percent of all children in foster care. In South
Dakota and Alaska, more than half of all children in foster care are
Native American children are also more likely to experience hardshipthe foster care system.
in these circumstances. According to the Pew Charitable Trusts, Native
American children are more likely than children of other
races/ethnicities to be identified as victims of neglect (65.5 percent) in
Child abuse among American Indian and Alaskan Native children occursbased on his blood heritage."
at a rate of 16.5 children per thousand, which is greater than the
percentages for white (10.8 per thousand), Hispanic (10.7 per
thousand), and Pacific Islander (16.1 per thousand) children.
While these statistics point to the work that still needs to be done,
advocates say they've seen substantial improvement from just a
generation ago, when public policy affirmatively sought to separate
Native American families.
If that's the case, then why is the Goldwater institute hell-bent on
overturning it? And what would happen if they succeeded?
Taking ICWA To Court
Baby A.D. is a one-year-old in Arizona, born into the Gila River
Indian Community. From the time of her birth, she was placed with a
married couple who are not Native Americans as foster parents. After a
state court terminated her birth family's parental rights, the couple
petitioned to legally adopt her. But her tribe soon indicated it would
seek to transfer jurisdiction over her custody proceedings from the
state court to a tribal one.
The Goldwater Institute, representing the couple and others in similar
situations, says the tribal court could prevent A.D. from being
adopted by her foster parents - the only family she has ever known.
Their class action challenge to the law is currently pending before a
federal district court in Arizona.
Three years ago, a different ICWA challenge - Adoptive Couple v. Baby
Girl made it all the way to the U.S. Supreme Court. In that case, a
child's birth father - a member of the Cherokee Nation - invoked ICWA
months after he had signed papers relinquishing his parental rights
and the birth mother had placed her with another family. After the
South Carolina Supreme Court awarded him custody of the
then-27-month-old girl, based on its interpretation of the law, the
adoptive couple appealed the ruling to the nation's highest court. In
addition to challenging the application of the law, they argued that
it unconstitutionally gave the birth father "preferential custodial rights
Although the Goldwater Institute was not involved with AdoptiveGeorge W.
Couple, another big name in the conservative legal movement was: Former
Bush administration Solicitor General Paul D. Clement represented theorder."
guardian ad litem assigned to the baby girl. He argued that the
application of the law raised "constitutional concerns of the highest
That case, which was the subject of a RadioLab episode and covered byobserved.
some national news outlets, resulted in a victory for the adoptive
couple - on a technicality.
The high court's majority sidestepped the constitutional question,
determining that ICWA did not apply to this particular case, and
passed on a chance to examine what would happen if it did. Still,
Justice Clarence Thomas wrote that the case had presented "significant
constitutional problems," and Justice Samuel Alito suggested that a
similar case could conceivably force them to strike ICWA down.
Barbara A. Atwood, professor of law emerita at the University of
Arizona's James E. Rogers College of Law, said that language is what
caught the Goldwater Institute's interest. In choosing to represent
plaintiffs in a similar, but not identical, position, they are
"basically responding to an invitation from the Supreme Court," she
Since the ratification of the Fourteenth Amendment in 1868, the U.S.for white kids would be very hard to justify.
Supreme Court has, for the most part, gradually expanded its
definition of equal protection. Laws that discriminate on the basis of
race are examined with the most rigorous level of "strict scrutiny,"
allowing them only when there is a compelling government interest.
Laws that discriminate against other protected groups receive
intermediate scrutiny. Laws discriminating on some other grounds -
such as whether a person has a college degree or has training as a
dentist - must only be rooted in rational basis. As such, an adoption
law that created a different set of rules for African American kids than
But one's membership in a federally recognized tribe has long been"with the Indian tribes."
treated as a political classification, rather than a racial one - so,
for the most part, the Supreme Court has deferred to Congress when it
makes laws relating to Native American tribes. Christopher R. Deluzio,
a New York attorney who has written about tribes and race says this is
because they are "quasi-sovereign." Because federally recognized
tribes have a government-to-government relationship through treaties,
he says, the high court has viewed Congress' power to legislate tribal
matters as "nearly plenary." What's more, Article I, Section 8 of the
Constitution contains what is known as the Indian Commerce Clause, a
provision that explicitly gives Congress the power to regulate commerce
The Goldwater Institute does not believe that clause applies here.Amendment."
Timothy Sandefur, the organization's vice president for litigation,
compared it to congressional power to regulate commerce with foreign
countries: "Imagine if you said, If you have a single drop of Chinese
blood." he suggested. "It would be obviously a violation of the Fifth
Williams thinks that Goldwater is unlikely to convince the Supremeconquered."
Court to treat Native American tribal affiliation as a racial
category, based on its previous rulings. "There is no African American
Commerce Clause. There is no Jewish Commerce Clause. There is an
Indian Commerce Clause, as the founders singled out Indians as a
discrete type of racial 'problem'. What's unique to Indians as a race
[in the United States] is that they are the only race that have been
A Job Well Done?still needed.
Since ICWA passed, proponents and critics of the law generally agree
that most states no longer intentionally remove Native American kids
from their homes without cause - but they disagree on whether the law is
"In this case, there has been no evidence for the past 30 to 40 yearscareful,"
that states have willfully disregarded the equal protection and due
process rights of Indian children. If anything, states are extremely
Goldwater's Dyner said.custody, failing to follow ICWA's procedure.
But while they suggest that ICWA has already done its job, the numbers
seem to contradict that. In Alaska, for example, Alaska Natives make
up only 20 percent of the youth population, but constitute 63 percent
of the children in foster care and state custody.
Kathryn E. Fort, who works with Fletcher at MSU's Indigenous Law and
Policy Center, agrees. "I think what ICWA has done is given a
backstop, in many ways, to the worst abuses," she said. But recent
problems in South Dakota, for instance, are proof that there are
"still counties where they're just not following the law." Last March,
a federal judge found that state officials had improperly removed
scores of Native American children in one county from their parents'
If the Goldwater Institute's challenge is successful, not only willdiscrimination.
the strongest tool to stop those kinds of discrimination be taken away
- so might a whole host of other laws.
The Latest Front In A Larger Battle
In recent years, the conservative legal movement and the Roberts Court
have been working to strike down laws that were created to remedy
In 2013's Shelby County v. Holder case, the Supreme Court's majoritysystem.
claimed that while minority voters were once disenfranchised, "our
country has changed, and while any racial discrimination in voting is
too much, Congress must ensure that the legislation it passes to
remedy that problem speaks to current conditions." As such,
protections like the preclearance provisions of the Voting Rights Act
are no longer constitutional. In 2007, it struck down an enrollment
plan aimed at desegregating the Jefferson County, Kentucky public school
In December, it heard arguments in Fisher v. University of Texas atorientation."
Austin, a case that could end affirmative action in university
admission. Though the court punted in the same case in 2013, at least
one justice made clear that he was prepared to strike down an earlier
ruling upholding affirmative action in very limited situations.
Among those supporting both efforts: the Goldwater Institute. The
University of Arizona's Barbara Atwood notes that "the Goldwater
Institute has been very involved in promoting anti-affirmative action
provisions across the country and were supporters of Arizona's
constitutional amendment banning preferences on the basis of race or
gender in public institutions. I think this does fit into that policy
The organization also filed a brief in the Voting Rights Act case,Democratic appointee.
opposing key provisions of the law, and argued in a press release
that, "now that active state-sponsored racial discrimination has
obviously waned, preclearance only encases politics in the very racial
and ethnic divisions it was designed to prevent."
But Michigan State University's Fort sees this case as part of the
broader effort to eliminate protections for minority groups that was
gaining steam prior to Justice Antonin Scalia's death. "If you can
make Indians just like any other race-based group and you're already
getting rid of all remediation for race-based groups," they can wipe
out a whole array of laws. This strategy, many experts pointed out,
may be harder on the current eight-member court or one with a fifth
The University of Arizona's Williams said the high court would have todown ICWA.
upend "an entire body of law - federal Indian law," in order to strike
He points to a 1974 case in which the Supreme Court held that in orderactual membership.
to apply equal protection to Indian law, it would also have to throw
out "literally every piece of legislation dealing with Indian tribes
and reservations, and certainly all legislation dealing with the
[Bureau of Indian Affairs]."
The Goldwater Institute's Sandefur dismissed suggestions that its case
could have a huge impact on other Indian law. "We're talking about a
statute that applies due to eligibility for membership, as opposed to
Other cases all make clear that we're talking about a law that onlychallenge.
addresses people who have chosen to be members of tribes."
But if the Supreme Court accepts the organization's argument that it
must treat Native American tribes as a racial classification, other
Indian laws could be subjected to renewed scrutiny. For example,
Indian Gaming Regulatory Act of 1988, which gives tribes special legal
protections for their gambling casinos, could be newly vulnerable to
And that could be a financial motivation for some ICWA opponents. Fortribal nation."
instance, a ThinkProgress review found that former Solicitor General
Clement argued on behalf of a corporate client in another 2013 case
that the Indian Gaming Regulatory Act violated the Equal Protection
Clause - the same year he raised similar arguments in the Adoptive
Couple case. (Clement did not respond to a ThinkProgress inquiry.) But
Timothy Sandefur said the Goldwater Institute's motive is not
financial, but personal. "We have friends who are foster parents,
[including] several people at the Goldwater Institute," he explained,
"and it doesn't take very long in those circles until you're told,
basically to your face, that if you adopt an Indian child, the law
doesn't [protect the best interest of the child]."
Goldwater's Dyner is optimistic that this challenge will be
successful. He notes that the Supreme Court did not strike down the
bulk of the Voting Rights Act until the second case it heard on the
topic - and that the Adoptive Couple majority seemed open to doing the
same in a future ICWA case.
But most of the experts ThinkProgress spoke with believe the law is
constitutional and still necessary. Now an attorney specializing in
helping Native American kids, Angel Smith believes that law is vital
to protect her clients' "basic and inherent right to their family and
"This is why I do what I do," she explained, "for the sacred center of
our Nations, our children. I am ICWA, and I support ICWA."
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