Goldwater Institute Clashes With Advocates Over The Indian Child Welfare Act

By Lauren Gilger, Steve Goldstein, Mark Brodie
Published: Wednesday, January 22, 2020 - 2:46pm
Updated: Thursday, January 23, 2020 - 8:07am

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Indian Child Welfare Act
Sky Schaudt/KJZZ
The Indian Child Welfare Act was passed in 1978.

MARK BRODIE: In 2014, the Goldwater Institute waded into a longtime debate over the validity of the Indian Child Welfare Act, or ICWA. The act was passed in 1978 and mandates child welfare agencies prioritize placing children taken from dangerous domestic situations with families that share their Native American heritage.

STEVE GOLDSTEIN: The Goldwater Institute argues the act puts the traditions of the tribe above the safety of the children. Here's Timothy Sandefur, vice president for litigation at Goldwater.

TIMOTHY SANDEFUR: Not only does it override the "best interests of the child" standard that applies to children of all other races, it imposes an across-the-board legal presumption that children who are deemed Indian under the statute must be placed in accordance with what a tribal government determines, regardless of their individual circumstances. And this is objectionable, among other reasons, because we think about the history. All of the harms and injustices that have been inflicted on Native Americans in this country have been done because Congress said, "Oh, we know what's in the best interests of all people who fit this one racial category." That's crazy. The rule in all child welfare cases is that you're supposed to pay attention to the needs of the particular child and that child's particular circumstances. And ICWA doesn't do that. ICWA instead says, "If this child fits into this racial profile, then the following things shall happen to that child." And that's really unjust.

BRODIE: But many take issue with one of the central claims in Goldwater's case: that Native Americans are a racial group, not a political one. Here's more from Sandefur on why he thinks that's not the case.

SANDEFUR: ICWA is absolutely unique among federal laws in that it does not apply to tribal members. It applies to children who are eligible for membership in a tribe and who have a biological parent who is a tribal member. So in other words, ICWA is not triggered by tribal status but by whether a child fits the racial profile because eligibility is determined only in terms of biological descent. So unlike other Indian laws, ICWA is triggered exclusively by the blood in your veins, not by cultural or political affiliation with a tribe. That makes it totally different and means that it falls into the group of laws that classify people based on race, which is unconstitutional.

BRODIE: Sandefur agrees there needs to be a balance struck here, but he thinks ICWA goes far beyond the balance point.

SANDEFUR: Of course ICWA was well intended. I don't think anybody passed ICWA expecting these terrible consequences that today flow from it. Unfortunately, it was written so badly that it goes way too far and reaches a point where it elevates tribal government authority over the interests and the safety and the welfare of individual children. So how you strike the balance? The number one rule in striking that balance should be that the individual child's best interests should take precedence over these other considerations. If a child is in need, race should not be a factor. What should be a factor is to ensure that that child has his or her best interests prioritized by a court. And what's wrong with ICWA is that it bars that from happening.

BRODIE: Now, one case testing the grounds of ICWA is making its way through the courts. And some Arizona leaders are taking notice.

GOLDSTEIN: The case is called Brackeen v. Bernhardt. It was filed by a Texas family that wanted to adopt a Native American boy they'd fostered, who is part Cherokee and part Navajo. But when the adoption paperwork was filed, the adoption was denied on grounds it violated ICWA. There was a Navajo family willing to take in the child. So the Brackeens joined with the state of Texas and filed a federal lawsuit. Now it's being heard before the 5th U.S. Circuit Court of Appeals in New Orleans.

BRODIE: And some notable Arizonans are getting involved. State Attorney General Mark Brnovich recently joined a coalition of 27 AGs in speaking out in defense of the Indian Child Welfare Act. And Senator Kyrsten Sinema joined a bipartisan group of lawmakers who are defending the act.

GOLDSTEIN: For more on this, our cohost Lauren Gilger spoke with David Simmons, director of government affairs and advocacy with the National Indian Child Welfare Association, who's working to defend the act. They began with a little history and why the Indian Child Welfare Act was passed in the '70s to begin with.

DAVID SIMMONS: Well, prior to the 1970s and when the Indian Child Welfare Act was enacted, there was a study that was done by the Association on American Indian Affairs, and it looked at out-of-home placements of native children from around the country. And what they found was, is that about 25% to 35% of all native children in the United States were in some kind of out-of-home placement. Eighty five percent of those children were actually in placements that weren't even in their own communities, often with non-native families. So they weren't even connected to their culture. So Congress looked at this and realized it for what it was, which was a huge epidemic. And if it continued this way, it was going to threaten that basic existence of many tribes, many communities. And it was certainly wreaking havoc, creating all kinds of trauma for families and communities all around the United States.

LAUREN GILGER: So since it's been in place for many, many decades now, has it been challenged regularly? Or is this most recent case, this Brackeen v. Burnhardt case, new in a way?

SIMMONS: Well, really up until probably just a little bit before the filing of the Brackeen case, what we saw were individual filings — usually in state court, not in federal court. And it was really courts, you know, plaintiffs, people who were involved, actually involved in different kinds of child welfare cases involving native children in the Indian Child Welfare Act. And most of them, they were just trying to get some kind of interpretation of how the statute would work with certain kinds of circumstances. So, you know, you'd have situations where you might have a tribe, the child's attorney, parents' attorneys, maybe somebody from the state agency who were trying to just understand more about how the Indian Child Welfare Act should be implemented in a particular situation. But what changed really was when the Goldwater Institute got involved. And they began to, along with some of their allies, start to challenge the Indian Child Welfare Act on constitutional grounds. Something we hadn't seen in over 30 plus years of implementation of ICWA.

GILGER: Let's talk a little bit more about this Brackeen case. This was a Texas family that was sort of in the process of adopting a child who was Navajo.

SIMMONS: Yes. Was a child who actually had eligibility for enrollment in both the Navajo Nation as well as the Cherokee Nation in Oklahoma. And the child had been placed initially in foster care with the Brackeen family. And so they were providing the home to the child while they were looking for a more permanent home. Now, sometimes the permanency works in a way that, you know, you always look to the family first to try and see if there's a way to kind of rehabilitate Mom and Dad, to be able to have them be able to have the child returned to them. In this case, that wasn't possible. Around the time that the Brackeens became more interested and expressed their desire to provide an adoptive home to this child, there was interest by Navajo family, a relative family of the child, to become that permanent placement for the child. But the Brackeens continued to push for adoption with themselves, even though that placement with them would not be in compliance with the Indian Child Welfare Act. So we understand, and we also support families coming forward and helping provide that temporary care as foster parents. But what we've seen, at least in cases like the Brackeens is that people are essentially trying to adopt native children even when there are other family members, when there other tribal members who are available. And so that's one of the concerns we have. And even in child welfare with non-native families, we see there's a real emphasis and an understanding both in policy and practice, that working with relatives and families from communities where children come from is really, really where we should be going first. And so this is why ICWA really represents that kind of best practice in child welfare.

GILGER: So this became sort of a test case. It sounds like a lot of the criticism of positions like Goldwater and some of the states that have taken this forward and challenged the act's constitutionality come back to this issue of sovereignty in general. What are the arguments that those folks are making?

SIMMONS: Well, they're they're making a couple of kind of central arguments. One is that they believe laws like the Indian Child Welfare Act are not based in a political status, which is what the precedent has been telling us and has been established for well over 100 years. So native children are members of tribes, so they are citizens of tribes. They are not a racial group. But the plaintiffs here are making arguments that ICWA's a race-based law and that somehow that violates the Constitution through equal protection clause. But it's clear that that's not the case. There's been hundreds of federal court decisions, and Congress has moved to pass laws that really work and understand that native people are part of a sovereign government. They're citizens of a government. They're not just another racial group.

GILGER: Is there a balance that needs to be struck there or is often struck? Or are you saying it comes down often on the other side in terms of sort of preserving the culture, keeping sovereignty intact but also finding the very best setting for the child?

SIMMONS: One of the things that the Indian Child Welfare Act does, I think very well, is it understands that this is a really — child welfare in general is a team approach. You know, you have to have people from the courts and from the agencies and the tribal governments all have to be working together to get the needs of native children, families met. And you see that even with non-native families. Child welfare involves a lot of collaboration if it's going to be successful. So in the Indian Child Welfare Act, while there are some fairly clear and sort of black and white requirements, there are a lot of places where the state court, for instance, has discretion to go in a different direction than the act normally requires if certain circumstances warrant that. And you have to really show good cause to do that. So it isn't that tribes can just veto any kind of action that the state court has. They just have to go through a process to show, and the parties have to show that there is good cause to deviate. And we see that happening in some cases, helping these children and families get to the best possible place. So it is not a it's not an, I would say, unreasonably rigid law in any regard. It's very much like many other child welfare laws on the federal level, which really understand that flexibility and provide some discretion.

GILGER: That's David Simmons, director of government affairs and advocacy for the National Indian Child Welfare Association.

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