Indian Child Welfare Act harms Native American children through separate and unequal set of rules, new Goldwater Institute paper argues

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Goldwater Institute

Phoenix—A federal law intended to protect Native American children does more harm than good because its substandard rules deny them equal protection, a new Goldwater Institute paper explains.

In the paper, Escaping the ICWA Penalty Box: In Defense of Equal Protection for Indian Children, Goldwater Institute Vice President for Litigation Timothy Sandefur delves into the history of and the rationale behind the Indian Child Welfare Act (ICWA), a law that gives tribal governments power to control the fate of abused, neglected, or abandoned Indian children. While ICWA was enacted with the goal of preserving and strengthening Native American families, Sandefur’s paper discusses several landmark ICWA cases that illustrate the damage the law can do to Indian children, families, and tribes.

Under ICWA, children with only a very small percentage of Native American blood who previously have not been raised on tribal lands or had any contact with a tribe can be forced out of loving, safe homes and into other homes, based on their race. “ICWA creates a separate and substandard set of rules for at-risk children, based solely on their race,” Sandefur explains. “It does this by deeming a child ‘Indian’—and therefore subject to ICWA’s different rules—based solely on biology, without any regard for social or cultural ties to a tribe, or lack thereof.”

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