The blood-stained Indian Child Welfare Act
“It is a sordid business, this divvying us up by race.”
— Chief Justice John Roberts
Sordid, always. And sometimes lethal, as some Native American children could attest, were they not, like Declan Stewart and Laurynn Whiteshield, dead. They were victims of the Indian Child Welfare Act (ICWA), which demonstrates how identity politics can leave a trail of broken bodies and broken hearts.
The 1978 act empowers tribes to abort adoption proceedings, or even take children from foster homes, solely because the children have even a minuscule quantum of American Indian blood. The most recent case to reach the U.S. Supreme Court concerned a child who was 1.2 percent Cherokee.
Children's welfare, which is paramount under all 50 states' laws, is sacrificed to abstractions like tribal “integrity” or “coherence.” The Goldwater Institute, a Phoenix think tank, is challenging ICWA's constitutionality. Goldwater litigators say that guidelines from the U.S. Bureau of Indian Affairs tell courts that in determining foster care or adoption, “Placement in an Indian home is presumed to be in the child's best interest.” ICWA forbids blocking placement in an Indian home because of poverty, substance abuse or “nonconforming social behavior.”
ICWA was passed to prevent the taking of Indian children from their homes without justifiable cause. But by protecting tribal sovereignty without stipulating the primary importance of protecting the best interests of the children, the rights of the tribes have essentially erased those of the children and the parents who wish to adopt them.
Declan Stewart was 5 when he was beaten to death by his mother's boyfriend. Declan had been removed from her by Oklahoma state officials in 2006, after his skull had been fractured and he received severe bruising between his testicles and rectum. But when the Cherokee Nation objected to his removal, Oklahoma relented. Declan was murdered a month after being returned to his mother.
From age 9 months until she was almost 3, Laurynn Whiteshield and her twin sister were in the foster care of Jeanine Kersey-Russell, a Methodist minister in Bismarck, N.D. When she tried to adopt them, the Spirit Lake Sioux tribe invoked ICWA and the children were sent to the custody of their grandfather. Thirty-seven days later, Laurynn died after being thrown down an embankment by her grandfather's wife, who had a record of neglecting, endangering and abusing her own children.
By treating children as little trophies for tribal power, ICWA discourages adoptions by parents who see only children, not pawns of identity politics. The Goldwater Institute hopes to establish the right of Indian children to be treated as all other children are, rather than as subordinate to tribal rights.
The most pernicious idea ever in general circulation in the United States is the “one-drop rule,” according to which persons whose ancestry includes any black or Indian admixture are assigned a black or Indian identity. It is revolting that judicial proceedings in America can turn on questions about group rights deriving from “blood.” This is discordant with the inherent individualism of the nation's foundational natural rights tradition, which is incompatible with ICWA. It should be overturned or revised before more bodies and hearts are broken.
George F. Will is a columnist for The Washington Post and Newsweek.