The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Indian Child Welfare Act is a well-intentioned law that has gone terribly wrong. Intended to protect Native American children from overzealous, sometimes racist officials who were historically way too keen to terminate Native Americans' parental rights, in practice it is itself a racist law.
I discuss some of the problems with the ICWA in my forthcoming book, Classified: The Untold History of Racial Classification in America. For example, the ICWA insists that a tribe that has no ties whatsoever to a child except common Indian genetic heritage can veto adoption of a partially Indian child by a non-Indian parent. A child who is, say, 1/64 Cherokee but is eligible for tribal membership must get the assent of not just the Cherokee tribe, but any other recognized tribe who might object, before a non-Indian parent may adopt him.
The ICWA is under intense scrutiny because of a recent en banc decision of a strongly divided Fifth Circuit regarding whether the Act is unconstitutional either under as racially discriminatory or because it unduly interferes with state legal and judicial processes.
Tim Sandefur, president of the Goldwater Institute (and a friend) is one of the loudest and most persuasive critics of the ICWA. He submitted an article about the law to the American Indian Law Review. In my limited experience, dissent from the Indian Law establishment's support for laws like ICWA is quite unwelcome in academic circles. Nevertheless, to Tim's own surprise, the AILR accepted the article in May, and Tim agreed to publish with them.
For the uninitiated, law reviews almost never revoke offers once accepted. The only acceptable rationale for doing so would be evidence of gross academic misconduct, such as large-scale plagiarism. Law review editors typically bend over backwards to resolve any issues short of that.
Nevertheless, last week the AILR's editor-in-chief wrote to Tim that "there are significant issues that emerged with your article that have raised concerns with the Board of AILR. After long deliberation and careful thought, the Board has determined that it is in the best interest of the journal to withhold publication of your article."
As Tim explains in detail in a blog post, when asked for elaboration, the editor provided a bogus list of complaints that are obviously masking a transparent decision to revoke acceptance on political grounds. Tim is owed an apology by the AILR, and by the law school, and prompt publication of his article (though he now has a backup offer just in case). If the AILR declines to do so, it's time for the faculty advisor and dean to step in.
Unfortunately, rather than this being an isolated incident, from speaking to colleagues this seems to reflect a trend of law review editors being much more likely than in the past to object to articles that express opinions that go against, or even simply don't endorse, progressive policies.
And while we are on the subject, kudos and thanks to the Southern California Law Review, which recently published my article, "The Modern American Law of Race." There is nothing inherently anti-progressive about the piece, but it's about race, questions the wisdom of the status quo of official racial classification, and it doesn't take a woke or even left-leaning perspective on the subject. This would be enough, unfortunately, to spike it at most law reviews today.