A Supreme Court blunder endangers Native American children
Because of Thursday’s Supreme Court blunder
— an act of misplaced judicial restraint — the lives of some Indian children will be unnecessarily miserable, and sometimes shorter, than they would be without an excrescence on U.S. law called the Indian Child Welfare Act. This especially unpleasant manifestation of identity politics will continue to multiply broken hearts and bodies.
The ICWA’S defenders say it concerns not race but a political category, the rights of tribes. This is a distinction without a difference, as the ICWA is applied. The government recognizes 574 tribes, which the ICWA treats as fungible. All of them base membership eligibility solely on biological rather than cultural or political facts.
Predicated on generic Indianness, the ICWA makes children — all of whom are U.S. citizens — sacrificial playthings of race-mongers bandying rhetoric about tribal “integrity” and “coherence.”
Penetrate the fog of such abstractions, and the ICWA is starkly incompatible with the nation’s foundational proposition: Rights inhere in individuals, not groups.
The ICWA, which repellently calls children tribal “resources,” is about enhancing tribal power rather than protecting children’s welfare. It allocates group entitlements based on biology, as did Germany’s 1935 Nuremberg Laws.
About the case decided Thursday: The biological mother of a Navajo child identified as A.L.M. and his sister, called Y.R.J., supported their being raised by Chad and Jennifer Brackeen, neither of them Indians, in Texas, far from the Navajo Nation. This nation, however, wanted the siblings separated, and the sister sent to another state to live either with a great-aunt or an unrelated Navajo couple.
The court, divided 7-2, chose not to strike down the ICWA. Justice Amy Coney Barrett wrote: The ICWA “requires a state court to place an Indian child with an Indian caretaker
. . . even if the child is already living with a non-indian family and the state court thinks it in the child’s best interest to stay there.” That accurate description should have sufficed to dictate a different ruling.
Barrett writes unhelpfully that Congress has “plenary” but not “absolute” power to legislate regarding Indians. Otherwise, Congress could disregard the Constitution, including “equal protection of the laws,” concerning Indians. But the court now allows that. Could Congress forbid Indians from leaving their tribes, marrying outside the tribe, adopting non-indian children, etc.? The seven justices might say yes.
During oral argument last November, Brett M. Kavanaugh said this case involved tension between, on the one hand, “respect for tribal self-government” and tribes’ difficult histories, and, on the other hand, “the fundamental principle we don’t treat people differently on account of their race or ethnicity or ancestry.” Now he has joined the court majority in abandoning that principle.
The ICWA shreds federalism principles. Fifty states have child protection systems whose overriding concern is “the best interests of the child.” The ICWA makes this consideration subordinate to the child’s relationship with a tribe. On Thursday, the court ratified this federal interference with child-welfare proceedings in state courts.
Dissenting against race-based custody proceedings, Samuel A. Alito Jr. rightly rejects “ICWA’S attempt to control local judicial proceedings in a core field of state concern” — “child custody, foster care, and adoption.” Also dissenting, Clarence Thomas acerbically notes that “not one” of the federal government’s constitutionally enumerated powers justifies intruding on those state concerns.
The ICWA was enacted to stop the wicked practice of forcing assimilation by removing Indian children from non-indian families. Now it functions to yank even thriving Indian children from nurturing non-indian families, in barbaric homage to Indian “blood.” This means that Declan Stewart and Laurynn Whiteshield and others died unremembered.
Declan was 5 when beaten to death in 2007 by his mother’s live-in boyfriend. Oklahoma, responding to his fractured skull and severe bruising between his testicles and rectum, had earlier removed him from his mother’s custody. The Cherokee Nation objected. The state, knowing the ICWA’S bias toward tribal rights, relented. Declan died of a beating a month after being returned to his mother.
Laurynn was 3 when living in foster care with a North Dakota minister, Jeanine Kersey-russell, who tried to adopt her. The Spirit Lake Sioux tribe, invoking the ICWA, got Laurynn sent to a reservation in 2013 and the custody of her grandfather. Within six weeks she was dead, thrown down an embankment by the grandfather’s wife, who had a record of child abuse.
This was carnage from identity politics. More will come from the court’s decision allowing children to be treated like tiny trophies of tribal power.
George Will’s email address is georgewill@washpost.com.