Na­tive Amer­i­can chil­dren de­serve equal pro­tec­tion un­der the law

Austin American-Statesman - - VIEW­POINTS - RICK LANDWEHR, AUSTIN

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 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.

At a re­cent meet­ing of the MD An­der­son Can­cer Cen­ter’s Board of Vis­i­tors, we were in­tro­duced to An­der­son’s new pres­i­dent, Dr. Peter Pis­ters, who comes from the Univer­sity Health Net­work in Toronto where he was pres­i­dent and CEO, en­joy­ing great re­spect in the in­ter­na­tional health care arena.

In his re­marks, Pis­ters made a point of thank­ing the search com­mit­tee for hon­or­ing its

Why is Cen­tral Health spend­ing tax­payer funds to air tele­vi­sion ads, ap­par­ently about their pur­pose? How does this im­prove health care for the sup­posed tar­get pop­u­la­tion? The ads ap­pear to be an at­tempt to de­flect at­ten­tion from their pat­tern of spend­ing that is not di­rectly re­lated to in­di­vid­ual health care, but to sup­port­ing a med­i­cal school.


Her­bert Stern, now 97 and liv­ing in Austin, is one of the “Texas lib­er­a­tors” whose sto­ries of find­ing Nazi con­cen­tra­tion camps at the end of World War II will be fea­tured in a book.

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