On November 9, the Supreme Court will hear oral arguments in Haaland v. Brackeen and consolidated cases addressing the Indian Child Welfare Act (ICWA). Congress enacted ICWA in 1978 in response to previous federal policies that shamefully tried to destroy Indian culture and the widespread state practice of giving preference to the placement of Indian children with white families. The idea was to assimilate Native Americans into white culture. ICWA was adopted, then, with good intentions. Unfortunately, the law—with its focus on the collective interests of Native American tribes—discriminates against individual Indian children and non-Indian foster parents. The Supreme Court will decide, among other things, whether ICWA violates the Constitution’s guarantees of equal protection.

In this post, I’ll briefly summarize the relevant provisions of ICWA and then highlight the unintended consequences of ICWA by recounting the ordeal that ICWA imposed on a non-Indian foster family, which was represented by my firm Pacific Legal Foundation in a custody case involving an “Indian child.”

The Indian Child Welfare Act

The Indian Child Welfare Act was adopted to prevent the “alarming abuses perpetrated through state Indian child custody proceedings.” ICWA declared a national policy “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .”

To implement this policy, ICWA applies to custody proceedings involving an “Indian child.” Custody proceedings are generally matters of state law, but ICWA supersedes state law in several ways. First, ICWA grants the Indian child’s tribe exclusive jurisdiction over a custody proceeding when the Indian child resides or is domiciled within the tribe’s reservation. If the Indian child is a ward of a tribal court, the tribe retains jurisdiction even if the child doesn’t live on the tribe’s reservation. Further, even when an Indian child is not a ward of a tribal court and is not domiciled or residing on a tribe’s reservation, a state court must transfer the custody proceeding to the jurisdiction of the tribal court (absent a showing of good cause to the contrary or an objection by one of the child’s biological parents). Finally, in custody proceedings that remain in state court, the Indian child’s tribe is permitted to intervene at any point in the proceeding. Once it has intervened, the tribe is treated as a full party and may advocate for its interests. And when ICWA applies, tribal interests are paramount.

ICWA requires courts—tribal and state—to “prefer” certain “placements” for Indian children. For the adoptive placement of an Indian child, the court must give “preference” to the Indian child’s placement with (1) a member of the Indian child’s extended family; (2) other members of the Indian child’s tribe; or (3) any other Indian family—even a family outside the child’s tribe. For foster or pre-adoptive placement, ICWA mandates that “preference shall be given” to (1) a member of the Indian child’s extended family, (2) a foster home specified by the Indian child’s tribe, (3) any Indian foster home (licensed or approved by an authorized non-Indian licensing authority), or (4) an institution for children approved or operated by any Native American tribe. The last three “preferred placements” do not require placement with members or institutions of the child’s own tribe.

One family’s ordeal

The unintended consequences that ICWA created can be illustrated through the lengthy ordeal endured by Foster Parents N.B. and S.B. and their foster son C.J., a young boy who has some Native American ancestry. By all accounts, Foster Parents provided a safe and loving home for C.J., and he had effectively become part of their large family. Under the well-established test for custody—whether a placement is in the child’s best interest—C.J.’s adoption should have been approved immediately. But because C.J. is (in part) Indian, and because N.B. and S.B. have no Indian ancestry (N.B. is white, S.B. is black), ICWA trumped, and its “placement preferences” trumped state law and threatened C.J.’s best interests. And delays caused by the application of ICWA meant that C.J.’s placement was not determined for five-and-a-half years.

C.J. is a citizen of Ohio, where he was born in 2012. In January 2015, the local children services agency removed C.J. from the care of his biological parents, who struggled with substance abuse, chronic homelessness, and periodic jail sentences. Sadly, these struggles continued and, approximately a year and a half later, C.J.’s Guardian ad Litem asked the juvenile court to grant permanent custody to Foster Parents. He told the court that Foster Parents had provided “exemplary care” for C.J., who had “essentially become a member of the family” and who exhibited a “close bond” with his Foster Parents and his “foster siblings.”

Three days later, the Gila River Indian Community intervened in the case because C.J.’s biological father is half-Indian. The Tribe asked the Ohio juvenile court to transfer the entire custody proceeding to its tribal court in Arizona. C.J.’s biological mother objected to the transfer, but the Ohio juvenile court informed the parties of its intention to grant the Tribe’s transfer motion and scheduled a hearing. Two days before the hearing, the Tribe filed a “Child in Need of Care Petition” with its tribal court, which declared—without notice to the parties in the Ohio proceeding—an emergency temporary wardship over C.J. As noted above, when a child is a ward of a tribal court, that court has exclusive jurisdiction over a custody proceeding regardless of where the child lives. In its ruling (which, again, was issued without notice to the parties in the Ohio proceeding), the tribal court ordered that C.J. be moved to the Tribe’s Arizona reservation—where C.J. had never even visited—and placed in the physical custody of distant relatives—whom he had never met.

The Ohio court then ruled that because the Gila River Tribe had not received proper notice of the Ohio proceeding, the Ohio case was “null and void.” The court dismissed the Ohio case in its entirety and granted the Tribe’s transfer motion. Accordingly, on December 16, 2016—almost two years after C.J. was placed with Foster Parents—the Ohio juvenile court ordered that, just two weeks later, the Tribe would pick up C.J. in Columbus and take him to Arizona.

C.J.’s Guardian ad Litem appealed the Ohio court’s order and obtained a stay from the appellate court before C.J. was moved to Arizona. The Ohio appellate court later reversed the juvenile court’s order, in part because C.J.’s biological mother had objected to the transfer. The Ohio appellate court’s decision was issued in March 2018—a year and a half after the Tribe first intervened in the Ohio juvenile court proceeding and more than three years after C.J. was first placed with Foster Parents.

When the case returned to the juvenile court, Foster Parents still found themselves in what Timothy Sandefur calls “the ICWA penalty box”—“a set of legal disadvantages that make it harder to protect Indian children from abuse, and to find them permanent adoptive homes.” Now, rather than adoption, Foster Parents sought legal custody. Under ICWA, the “preferred placements” for C.J. were (1) a member of his extended family, (2) a foster home specified by his tribe, (3) any Indian foster home (licensed or approved by an authorized non-Indian licensing authority), or (4) an institution for children approved or operated by any Native American tribe.

To maintain custody of C.J., Foster Parents were required to overcome these preferences with a showing of “good cause to the contrary.” And, under a 2016 regulation, Foster Parents had to make this showing by the steep clear-and-convincing-evidence standard. Therefore, because C.J. is (in part) Indian and because Foster Parents have no “Indian blood,” ICWA imposed a burden on Foster Parents to show—by clear and convincing evidence—“good cause” to depart from the Act’s race-matching placement “preferences.”

Ultimately, the Ohio juvenile court concluded that Foster Parents established “good cause” to depart from ICWA’s placement preferences. But the court did not issue this ruling until May 2020—more than two years after the Ohio appellate court returned the matter to the juvenile court, and five and a half years after C.J. was first placed with Foster Parents.

Foster Parents likely could not have afforded to overcome ICWA’s “preferences” with private counsel (they were represented for free). If C.J. and Foster Parents were of different races but ICWA was not in play, Foster Parents’ request for legal custody would have been analyzed under the “best interests” test that is used for every other child in Ohio’s juvenile court system.

Foster Parents filed a friend-of-the-court brief in the Brackeen case to argue that ICWA’s race-matching requirements harm not only Indian children but also non-Indian families who desperately want to provide safe and loving homes for Indian children. In that brief, Foster Parents emphasized their agreement with ICWA’s intentions to reject the idea that stereotypes—specifically, the idea that a “white” upbringing was preferable for Indian children—should be used in custody proceedings. But, they continued, ICWA’s race-matching preferences caused a similar problem: individual Indian children are sacrificed for collective interests, under a race-based presumption that Indian children uniquely need an Indian upbringing.

But for ICWA, C.J. would almost certainly have been placed under the permanent care of Foster Parents four years earlier than he was—indeed, he likely would have been adopted. Instead, C.J. faced years under the constant threat of being taken from Foster Parents, with whom he was closely bonded, and moved 2,000 miles away from the only state he had ever called home and away from his Foster Parents and foster siblings.

Conclusion

ICWA requires non-Indian families who want to adopt or foster Indian children to show, by clear and convincing evidence, that “good cause” exists to depart from ICWA’s race-matching “placement preferences.” ICWA thus places unique burdens on some foster parents only because of race. There is no compelling interest strong enough to justify depriving an individual child—of any race—of a determination of what is in his best interest. 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.