Laura and Pete Lupo of Washington raised “Elle” as foster parents from the time she was 14 months old, and attempted to adopt her in 2013. Elle’s mother was a drug addict and her father was in prison. Though she was less than 2 percent Cherokee, that was enough to make her an “Indian child” subject of the law. The Lupos tried to fight. But because they were non-Indians and had no rights under the law, Elle was removed from their home in June 2014. Losing her has “been like a death,” Laura Lupo said. “They made it a race issue and it was never, ever about that,” she said. “I don’t care if she’s white, red, black, or green. She’s a little girl and we love her.”
Paul and Jena Clark of Phoenix spent three years and $300,000 fighting in court to adopt Lauren, who they’d raised since she was born in 2006. Lauren’s birth mother insisted the Clarks should be the adoptive parents. But the Tyme Maidu tribe of California contested the adoption under ICWA, insisting the girl be placed with an Indian family. “Financially it buried us,” Paul Clark said. The tribe eventually dropped its challenge and allowed the adoption to go through.
The Indian Child Welfare Act, a federal law enacted in 1978, creates a maze of special rules that apply only to Indian children. When abused children are removed from their home and placed in foster care or made available for adoption, judges are required to make a decision about where the child will live based on the child’s best interest. Except for Native American children. State courts are bound by federal law to disregard a Native American child’s best interest and place the child in a home with other Native Americans, even if that home is unsafe.
There are no minimum blood quantum requirements in ICWA, meaning even a child with only slight Indian heritage is subject to the law. There also is no requirement that the child or parents ever lived on Indian land or had any prior connection with their tribe.
ICWA subjects Native American children to a different standard under the law than all other American children. That’s not allowed under the U.S. Constitution. That’s why we’re filing a federal class action lawsuit that protects Native American children and enforces and promotes the core constitutional principles of equal treatment under the law, respect for individual rights, and federalism.
The Indian Child Welfare Act creates a two-tiered system for protecting endangered children, one for Indians and another for non-Indians. If a non-Indian child is removed from a dangerous home, decisions about parental rights, custody, and adoption placement are dictated by state laws alone. While most states have provisions to protect parents’ rights and to place children with relatives, they are secondary to the determination of what is in the child’s best interests.
Not so with ICWA. Aside from its omission of an explicit best interest requirement, the statute grants tribes and noncustodial parents rights that are not found in state laws.
Because of the restrictions that apply only to Indian children, they are more likely to be left in abusive homes and less likely to be adopted than other children. Advocates of the Indian Child Welfare Act say it is not about race. Rather, it has to do with the political status of sovereign tribes. But Indians have historically been treated differently because of their tribes’ status as sovereign nations, similar to, but not quite the same as states. Defenders of the law rely on a 1974 U.S. Supreme Court case, Morton v. Mancari. The court ruled Indian hiring preferences were permissible at the Bureau of Indian Affairs because they served a legitimate purpose of giving Indians more control of their own self-government, declaring the preferences were based on political affiliation and not race.
That same argument is used by tribes in defending ICWA: that the heightened requirements are needed to protect the tribes as political entities and not to enhance or diminish anyone’s rights based on race.