Native American children deserve equal protection under law

Like any 2-year-old, Andy (not his real name) loves his mom and dad. They’ve cared for him as long as he can remember — ever since his birth parents realized they couldn’t give him the care he needed. They want what’s best for him, so they supported his foster family’s decision to adopt him. If Andy were white, black, Asian, or Hispanic, that adoption would have been approved without delay, since federal law forbids state officials from denying an adoption on the basis of a child’s race.

Except one race.

Andy is Native American — part Navajo, part Cherokee. As a result, a Texas judge ruled that his case is governed by the Indian Child Welfare Act, a federal law that imposes less protective rules in cases involving his welfare. The Indian Child Welfare Act makes it harder to shield Native American children from abuse and neglect than children of other races and renders it virtually impossible to find them loving adoptive homes.

That’s why Texas Attorney General Ken Paxton filed a federal lawsuit challenging the constitutionality of the Indian Child Welfare Act’s racially discriminatory rules, demanding state courts protect Andy’s rights the way they protect the rights of all other kids. Attorneys general in other states owe it to these vulnerable Americans to follow Paxton’s lead.

The Indian Child Welfare Act was passed in 1978 in an effort to halt abuses by state child welfare officials, who sometimes took Native American children away from their parents without good reason. But it went too far, implementing a system of racial profiling that bars Native American children from being adopted by non-Native American adults, even when that would be in their best interests. Texas courts have even ruled that the “best interests of the child” standard that applies to kids of all other races does not apply to Native American children. Because of this, the judge in Andy’s case refused the adoption. And Texas child welfare officials announced they would be sending him to New Mexico to live with a different family instead — a family he’s met only once — because they’re of the same race.

The Indian Child Welfare Act is not limited to tribal members. It applies to children anywhere in America who are “eligible” for tribal membership — which is based exclusively on genetics. Children with Native American DNA in their blood are subjected to laws different from than the ones that apply to other children.

These laws aren’t just different — they’re worse. The Indian Child Welfare Act forbids social workers from taking a child away from abusive parents unless they first make “active efforts” to restore that child to the family — which often means they must return Native American kids to parents who have abused them. This rule has resulted in kids being molested and even killed, when child protection workers knew they were suffering.

The Indian Child Welfare Act also requires that Native American children be placed with Native American families — even from different tribes — instead of families of other races. And it imposes evidentiary rules that make adoption nearly impossible. If a family wants to adopt a child of any other race, a judge would decide the case using the “clear and convincing evidence” standard — requiring more than the “preponderance of the evidence” most civil lawsuits require, but less than the “beyond a reasonable doubt” rule that applies to criminal cases.

Yet the Indian Child Welfare Act imposes the “reasonable doubt” rule in adoption cases involving Native American kids. In fact, it adds additional requirements, meaning it’s literally easier to send a defendant to death row than to find a Native American child a loving adoptive home.

This isn’t just separate but equal; it’s separate and substandard. It’s disgraceful that legal segregation persists in this country, and it’s especially awful that it applies to Native American kids like Andy. They face greater risks of poverty, abuse, gang membership and violent death than any other demographic.

This country can’t erase the historical abuses heaped on Native Americans. But we can treat them fairly in the present. Justice and compassion demand that Native American children receive the equal protection our Constitution promises.

Sandefur is vice president for litigation at the Goldwater Institute.

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