ICWA was originally designed to prevent the breakup of Indian families and to protect
children and parents from abusive state government officials. 9 Laudable goals, to be sure. But
in practice, ICWA often harms children, by delaying or denying them placement in stable and
loving homes, compelling their reunification with abusive birth parents, and mandating
procedures that deprive them of the legal protections they need. 10 In the most extreme cases,
such as Lexi’s, children who lack any cultural or political affiliation with a tribe, and do not live
on a reservation, are subject to ICWA’s burdens solely because their ethnic ancestry renders
them “eligible” for tribal membership. 11 As the Supreme Court recently observed in Adoptive
Couple v. Baby Girl—one of only two Supreme Court decisions addressing ICWA—the Act’s
mandates can “override . . . the child’s best interests” and dissuade willing and caring families
from adopting Indian children—thereby imposing on these children “a unique disadvantage in
finding . . . permanent and loving home[s],” and burdening their futures “solely because an
ancestor—even a remote one—was an Indian.” 12
How is it possible that more than half a century after Brown v. Board of Education, 13 the
United States government still maintains a de jure “separate but equal”—or, more precisely,
separate and substandard—legal system for one particular racial group? What does it say about
the basic principles of our Constitution vis-à-vis our Native American population? And how can
9 See generally Matthew L. M. Fletcher & Wenona T. Singel, Indian Children and the Federal-Tribal Trust
Relationship (Apr. 28, 2016), http://ssrn.com/abstract=2772139.
10 See Joan Heifetz Hollinger, Beyond the Best Interests of The Tribe: The Indian Child Welfare Act and The
Adoption of Indian Children, 66 U. DET. MERCY L. REV. 451, 453 (1989) (“For non-Indians who wish to adopt an
Indian child, the risks are often considerably greater than in adoptions of other children . . . . For the Indian children
who may become involved in protracted controversies about their adoptive placement, the ICWA goal of promoting
their best interests may be undermined by the ICWA’s other goal of ensuring tribal survival.”). See also Elizabeth
Stuart, Native American Foster Children Suffer Under a Law Originally Mean to Help Them , PHOENIX NEW TIMES
(Sept. 7, 2016), http://www.phoenixnewtimes.com/news/native-american-foster-children-suffer-under-a-law-
11 25 U.S.C. § 1903( 4) (2012).
12 133 S. Ct. 2552, 2564–65 (2013).
13 347 U.S. 483 (1954).