Fact Check: Goldwater Institute’s statements about the Indian Child Welfare Act #ICWA

Timothy Sandefur speaking at the 2014 International Students for Liberty Conference.

The Institute’s claim that ICWA harms Indian children relies on dubious assertions and dog whistles.

Mary Katherine Nagle Perspective Dec. 20, 2018

Passed in 1978 to protect Indian children from predatory state welfare and adoption practices, the Indian Child Welfare Act (ICWA) keeps Native children with Native families and prioritizes Native homes in adoption cases. A longtime target of evangelical Christian organizations and anti-Indian hate groups, ICWA’s most recent challenge came this fall from a federal judge in Texas, who ruled the law unconstitutional in Brackeen v. Zinke. In Brackeen, the plaintiffs argued that because ICWA’s language refers to “Indian” children, the act violates equal protection and is therefore unconstitutional.
The Goldwater Institute, a libertarian think tank, litigation organization and veteran opponent of ICWA, joined Brackeen earlier this year to challenge the law. In September, Timothy Sandefur, vice president of litigation at the Goldwater Institute, spoke at the Cato Institute, another libertarian think tank based in Washington, D.C., about the 40th anniversary of ICWA...

Mary Katherine Nagle of Pipestem Law checked the facts and Sandefur’s analysis of them and provided context to some of the statements. 


BIG READ: Fact check: the Goldwater Institute’s statements about the Indian Child Welfare Act — High Country News

Excerpt:
This is a gross mischaracterization of the law. It’s hard to understand what Goldwater means by “Indianness generally” — but ICWA does not apply to humans who have “Indianness generally.” ICWA only applies to citizens of federally recognized tribes. Indeed, the statute has no application unless an “Indian child” is at issue, and “Indian child” is defined as “Any unmarried person under the age of 18 and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.“ The act is directly and inextricably linked to citizenship in a sovereign nation. If a child and his/her parents are not citizens of a sovereign nation, ICWA will have no application to that child‘s foster placement, adoptive placement, or the possible termination of the parents’ rights — regardless of how much “Indianness” generally that child may have in the eyes of Goldwater or anyone else. –Mary Katherine Nagle