Will: The brutal racial policies of India’s child protection law |
Lexi lived four of her first six years with a non-Native Californian foster family, but because she is 1 / 64th Choctaw, tribal officials had her taken away from Californians and sent her to live in Utah. with a distant relative.
On Friday, the Supreme Court will consider whether to hear a challenge to the law that made this possible – India’s Child Welfare Act, which puts many young Native Americans at risk. It is also a repudiation of the nation’s premise that rights are inherent in individuals and not in groups.
In 1978, before “Native Americans” became the preferred Indian designation, but when racial “identity” began to become the toxic political concept it is now, Congress strengthened tribal rights.
This violated, among other things, the principles of federalism: Congress thus curtailed the right of states to enforce child protection laws. And that has taken the government deeper into making distinctions purely on the basis of biological ancestry.
ICWA, a first step towards multiculturalism, has strengthened tribal identities by strengthening tribal rights.
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For example, tribes may partially override state powers to intervene against abuses by tribal parents that endanger children. And ICWA has given rights to tribes, rights adjudicated by tribal courts, including the right to require that Native American children be adopted by Native Americans.
Equal protection of the laws? Not under ICWA.
Chief Justice John Roberts Jr. asked, “Is it a drop of blood that triggers all of these extraordinary rights? Indeed, the primitive concept of racial “blood”, remelted into DNA, triggers tribal rights and extinguishes a state’s right to protect the rights of many children. Sometimes with disastrous consequences.
In 2015, this column introduced readers to Declan Stewart and Laurynn Whiteshield. Declan was 5 years old in 2007 when he was beaten to death by his mother’s boyfriend. Oklahoma removed him from his mother’s custody after he suffered a broken skull and severe bruising between his testicles and rectum.
But when the Cherokee Nation opposed its withdrawal, Oklahoma, knowing that the ICWA promotes tribal rights, caved in. Beaten again, he died a month after returning to his mother.
From the age of 9 months until almost 3, Laurynn was in the foster home of a minister in North Dakota. When the minister attempted to adopt her, the Spirit Lake Sioux tribe invoked the ICWA and Laurynn was sent to a reserve and in the care of her grandfather.
Less than six weeks later, she was dead, after being thrown into an embankment by the grandfather’s wife, who had a history of child abuse.
ICWA demands that “Indian children” be placed with “Indian” foster families. Because ICWA allows a child to be removed from a non-Indian foster home – and possible adoption – it discourages non-Native American adults from providing care, including early infant attachment, which is the basis of healthy child development.
Born with Fetal Alcohol Syndrome, Antonio Renova was three days old when he was taken from his biological parents, members of the Crow tribe, and placed in foster care.
Five years later, the birth parents, both on probation with felony convictions (mother included endangering children), were granted custody of Antonio through a tribal court in Crow . He was beaten by his parents, who were charged with his death.
Antonio was a victim of ICWA’s form of identity politics – the attribution of legal status and group rights based on biology.
ICWA has insinuated into law a “separate but equal” test for Native American children at risk. It lowers “the best interests of the child” from top priority; this makes a child’s relationship with a tribe extremely important.
The nation has many reasons to regret the mistreatment of Native Americans, and ICWA may have been motivated by an impulse to show respect for Native cultures. But the cost, in broken bodies and broken constitutional principles, has been exorbitant.
Today the nation is returning – in the name of “social justice” and “fairness” understood as improved social outcomes for government-favored groups – to a backward emphasis on racial identities.
Thus, ICWA’s sacrifice of individual rights to collective rights is likely to have reduced shock power.
On Friday, however, the Supreme Court should be shocked to hear arguments against the federal government’s usurpation, through ICWA, of states’ responsibility to protect children at risk, regardless of their biological ancestry.
Will is a columnist for the Washington Post Writers Group.