The Volokh Conspiracy

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A Limited but Significant Victory for Children the Government Deems to be American Indian

The Fifth Circuit invalidates portions of the Indian Child Welfare Act, but the Supreme Court needs to invalidate the whole thing


Tim Sandefur, who has done great work on the issue, analyzes the Fifth Circuit's long, divided opinion on the Indian Child Welfare Act.

As regular readers know, I have spent the last couple of years researching the modern American law of racial classification. (Did I mention that in addition to my soon-to-be-published law review article, I now have a book contract?) If you asked me what is the most obviously unconstitutional (or, for that matter, immoral) law that depends on such classification, my answer would be the ICWA.

Just for example, under ICWA a child could be zero percent Indian on his mother's side, 1/256 Cherokee on his father's side, and not a member of the Cherokee tribe, but eligible for tribal membership. According to the ICWA, this makes him "an Indian" for statutory purposes.

His parents decide to give the child up for adoption to a loving white (or black, or Hispanic) family. Great, right? Wrong. The Cherokee Tribe can veto the adoption, and insist that he be adopted by a Cherokee.

But wait, there's more. Even if the Cherokee tribe agrees to the parents' adoption wishes, before a court can allow the non-Indian couple to adopt, it would have to make sure that no other Indian tribe wants to claim the child. In other words, this child's future is being determined solely based on what amounts to a one-drop rule of racial ancestry, allowing a child that's never set foot on his ancestral reservation to be adopted against the parents' judgment by a tribe with which he has no connections at all, other than "racial." The Supreme Court needs to take this opportunity to get rid of this monstrous law.

[Cross-posted with minor differences at Instapundit]