The Unconstitutionality of the Indian Child Welfare Act

Abstract

The Indian Child Welfare Act was passed in hopes of redressing abuses by state and federal agencies that in the prior decades often took Native American children away from their families for insufficient reasons—sometimes as a consequence of cultural misunderstandings, and sometimes based on an outright policy of compulsory assimilation with majority society. But despite these good intentions, in practice, ICWA frequently harms the very children it was supposed to help. In April 2021, the Fifth Circuit Court of Appeals, in a long, sharply divided opinion, addressed many of the constitutional concerns that ICWA raises. The court failed to reach a majority opinion in some respects; in other respects it found that ICWA does not violate constitutional rules against racial distinctions. But it also struck down some portions of the Act on federalism grounds. This article examines some of ICWA’s constitutional flaws, and the defenses that have been offered by defenders of the ICWA status quo, both by academics and by the Fifth Circuit.