“May 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 dead.”
Whiteshield’s step-grandmother told the FBI she pushed the almost 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 Walton.
The tax-exempt conservative legal organization is best known for its 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 American children.
The irony, supporters claim, is that Goldwater himself supported the law. “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 against ICWA.
Kill The Indian, Save The Child
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 white families. This so-called Indian Adoption Project was rooted in the same 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 consequences.”
These abuses and consequences were very much on the minds of members 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 institutions.”
Smith says Congress was making it clear that “things needed to 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 rights are terminated.
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Matthew L.M. Fletcher, who directs the Indigenous Law and Policy 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 children.”
Angel Smith, a seventh-generation Cherokee tribal citizen from 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 identity, culture, and heritage.
“The connection with my Cherokee family absolutely was critical and is 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 children were adopted in 2012. American Indian and Alaskan Native children are over-represented in 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 expected level.
Some states see even higher ratios. In Oregon, between 2009–2011, 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 Americans.
Native American children are also more likely to experience hardship 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 the foster care system. Child abuse among American Indian and Alaskan Native children occurs 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 based on his blood heritage.”
Although the Goldwater Institute was not involved with Adoptive Couple, another big name in the conservative legal movement was: Former George W. Bush administration Solicitor General Paul D. Clement represented the guardian ad litem assigned to the baby girl. He argued that the application of the law raised “constitutional concerns of the highest order.”
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 observed.
Since the ratification of the Fourteenth Amendment in 1868, the U.S. 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 for white kids would be very hard to justify.
But one’s membership in a federally recognized tribe has long been 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 “with the Indian tribes.”
The Goldwater Institute does not believe that clause applies here. 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 Amendment.”
Williams thinks that Goldwater is unlikely to convince the Supreme 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 conquered.”
A Job Well Done?
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 still needed.
“In this case, there has been no evidence for the past 30 to 40 years that states have willfully disregarded the equal protection and due process rights of Indian children. If anything, states are extremely careful,” Goldwater’s Dyner said.
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’ custody, failing to follow ICWA’s procedure.
If the Goldwater Institute’s challenge is successful, not only will 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 discrimination.
In 2013’s Shelby County v. Holder case, the Supreme Court’s majority 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 system.
In December, it heard arguments in Fisher v. University of Texas at 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 orientation.”
The organization also filed a brief in the Voting Rights Act case, 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 Democratic appointee.
The University of Arizona’s Williams said the high court would have to upend “an entire body of law — federal Indian law,” in order to strike down ICWA. He points to a 1974 case in which the Supreme Court held that in order 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 actual membership. Other cases all make clear that we’re talking about a law that only 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 challenge.
And that could be a financial motivation for some ICWA opponents. For 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 tribal nation.”
“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.”
An earlier version of this story incorrectly stated the number of Native American children in foster care in South Dakota and Alaska.