American Indians are the only group of U.S. citizens whose child custody claims are decided solely on the basis of race instead of the best interests of the child.
Under federal law, it doesn’t matter in custody disputes if a child’s home is a crime-infested haven for violent gangs and drug dealers. It doesn’t matter if a child’s home is an avenue of emotional, physical, and even sexual abuse. What does matter is the color of the child’s skin.
In 1978, Congress passed the Indian Child Welfare Act (ICWA) codifying this institutional racism. Passed out of fear that the adoption of American Indian children would erode Indian culture, ICWA mandates that children who are up for adoption with the slightest trace of Indian blood be placed under tribal custody instead of a non-Indian family. In practice, this means adoptive parents can have their children stripped away from the only parents they’ve ever known to live on a reservation hundreds of miles away at the will of a tribe.
While passed with good intentions, the law’s consequences have been devastating. Sage DesRochers was born six months early at an Indian hospital in Phoenix to an abusive and alcoholic mother.
“The reason I was born so early was because she didn’t want me,” DesRochers told The Federalist. “Years later, when I was on the reservation with her, she told me to my face, ‘I never wanted you, I had always wish you died.'”
DesRochers went to live with foster parents at five months old. They eventually tried to adopt her. When she was 4, however, ICWA was invoked and she was ordered back onto the reservation where her birth mother lived as part of Arizona’s White Mountain Apache Tribe.
“I think she was coerced by the tribe to try and get me back,” DesRochers explained. When asked about the conditions on the reservation, DesRochers answered with a question.
“Have you ever seen a Third-World country?” she asked. “We saw a little old Apache lady with a big case of beer and she was drinking it on the side of the road. And when I came back later, she was on the ground and the case was gone. That’s the conditions of the reservation.”
DesRochers and her foster family initially fled to evade the court’s order. She eventually lived on the reservation from ages 13 to 16.
“It was a hard time,” she said. She reported abuse from her alcoholic mother and said her peers on the reservation “called me ‘too white.'” She left in 1991 and now lives with the parents who raised her in Arizona. Her birth mother has since passed away.
Supreme Court to Revisit ICWA
DesRochers’ story is just one of more than a dozen cases outlined in an amicus brief by the Christian Alliance for Indian Child Welfare before the Supreme Court. On Nov. 9, the high court will hear oral arguments in the case Haaland v. Brackeen, where the court will decide on the ICWA’s constitutionality.
The Alliance’s amicus brief claims the law violates the Constitution’s equal protection clause and exceeds congressional authority in child custody cases, which are decided at the state level.
“The Indian Commerce Clause is a limited grant of power to the United States to regulate ‘commerce’ with Indian Tribes,” the brief reads. “It should go without saying that Indian children are not resources, property, or items of ‘commerce.'”
Elizabeth Morris, who runs the Alliance, experienced the law’s effects on her own family when she and her American Indian husband took in six children subject to ICWA. Morris’s late husband was a member of the Leech Lake Tribe of Minnesota. The law’s application, Morris said, underscores the depravity of most Indian social services.
“Completely overlooked when it comes to ICWA is the burden that it puts on healthier families within the family system,” said Morris, who was also raising five children of her own. “It’s just irrelevant, they just put them with families. It’s just irrelevant what it does with families. But we were afraid of what would happen if we didn’t take them.”
Six more children means six more kids to get through school and six more mouths to feed. ICWA more than doubled Morris’s parental responsibilities.
“We did not want our children raised on a Leech Lake reservation because of the crime and corruption, because of the sexual abuse, because of the rampant addictions,” Morris added. “I wasn’t capable” of taking more children, she said, “but that was never a question.”
The Supreme Court last addressed ICWA in the 2013 case of Adoptive Couple v. Baby Girl, otherwise known as the “Baby Veronica” case. In 2009, a child born to a Hispanic mother and Cherokee father was put up for adoption after the couple broke off their engagement.
The baby’s father initially relinquished parental rights but reversed course after a couple in South Carolina adopted the child. Because the birth father was American Indian, ICWA could be invoked to compel the transfer of custody. The Supreme Court ultimately ruled in the adoptive couple’s favor and determined the law did not apply where the biological parents never had custody to begin with. The court did not rule on the law’s broad constitutionality, however, and the federal statutes remain painfully ambiguous.
Desirae French’s son became the center of a custody battle with her son’s birth father, who has a blood connection to the Pueblo Laguna. The New Mexico tribe is that of Interior Secretary Deb Haaland, the first American Indian to hold a cabinet-level post.
French told The Federalist her case began to go sideways when ICWA was invoked despite the birth father never having met their son until the child was just over a year old. Under the Supreme Court’s 2013 ruling, the law would not apply. But Timothy Sandefur, the vice president for legal affairs at the Goldwater Institute, explained how the ambiguous nature of the ruling has kept many families from mounting successful appeals.
“Unfortunately, because ICWA is enforced primarily in state trial courts and juvenile courts, what you see is not a lot of legal precedent set because these cases don’t often get to the court of appeals,” Sandefur told The Federalist. “Fifty states enforce the law in all sorts of different ways so you have a lot of mistakes propping up in ICWA cases.”
Combine intimidation from tribal governments, Sandefur said, and you get “parents afraid to speak out about how abusive ICWA is.”
According to the amicus brief filed by the Christian Alliance, the birth father of French’s baby is a convicted sex offender in the second degree. French, who lives in New York, told The Federalist that their child remains in his custody, and she feels the courts were “profiling me because I’m white.”
Any Tribe Can Make a Claim
According to the Arizona-based Goldwater Institute, which also filed an amicus brief in the Brackeen case, federal regulations stipulate no minimum blood requirement to qualify as American Indian. That means even a drop of blood genetically traceable to a tribe can risk ICWA being invoked to transfer child custody.
Under ICWA, children do not even need to be placed with their own tribe. The law prioritizes any tribal family over non-Indian parents, regardless of the circumstances.
The law is written so vaguely, Sandefur said, that “it doesn’t surprise me in the slightest that these cases are being decided in ways not consistent with what the law actually requires.”
“I think a lot of misunderstandings about this law are caused by people vaguely thinking of Indian children as foreigners,” Sandefur told The Federalist. “All of these children are citizens of the United States and they have been for a century. These children are entitled to the same legal protections that apply to children of all other races, and ICWA takes that away.”