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"Sacrificing Indian Childrens' Rights""Paleface Paternalism""Justice Massacred""Ethnic Errancy""Rose Parade Indian-givers""Slaves to the tribe""Tribal bigotry""Kids pay the price for tribes"The phrases listed above are published titles of newspaper editorials and op-ed essays challenging the legitimacy of the federal Indian Child Welfare Act ("ICWA") in the last 40 years. ICWA is a federal law originally passed in 1978 to address the high rate of removal (and subsequent adoption) of Indian children by state authorities. In passing the law, Congress found "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." While there was no significant controversy about the law when it was drafted and passed with unanimous consent in 1978, the application of the law over the past 40 years, the law has come under sustained attack from scholars, attorneys, legislators, think tanks, adoption agencies, and judges. Moreover, while most child custody cases impacted by ICWA are so conventional that they don't warrant any particular attention, almost all national news coverage of ICWA emanates from a few specific high-profile cases in which mainstream news outlets usually characterize ICWA as cultivating unfair battles between Tribal Nations and prospective adoptive parents. Editorials, though, often go further than that, using words like "sacrificing", "massacre", and "slaves" to describe both tribal citizens and tribal nations. This article focuses on how these high-profile cases are characterized in newspaper editorials and op-eds; namely how these authors explicate their colonial views about ICWA, Indian identity, tribal sovereignity, and the virtues of adoption.

Walter Olson


The Supreme Court today decided Haaland v. Brackeen, a challenge to the Indian Child Welfare Act of 1978. It did not reach vital underlying Constitutional issues of equal protection and individual rights for children and families, and these remain to be resolved another day. Instead, the Court addressed important structural issues concerning the relationship between federal, state, and tribal governments. It interpreted the Constitution as giving robust powers to Congress to regulate Indian matters, while sharply limiting the underlying authority of state governments. It also found the doctrine of "commandeering" inapplicable to the facts here and denied some claims of standing. The 7–2 decision was written by Justice Amy Coney Barrett, with Justices Clarence Thomas and Sam Alito writing dissents and Justice Brett Kavanaugh a concurrence.
Future cases may frame more sharply than this one did such questions as whether children and parents who have never lived in tribal relations or in Indian country may nonetheless be subjected to tribal sovereignty and special custody presumptions because of blood descent alone. Cato raised some of these issues in its brief.
Everyone interested in these issues should read Justice Neil Gorsuch's eloquent concurrence, joined in part by Justices Sonia Sotomayor and Ketanji Brown Jackson, in which he lays out the grim history of government intervention in Indian family life to which ICWA was a reaction. It is a history in which agents of the state intervened to take children away from the only families they had ever known, very much against those families' will, to place them with complete strangers in pursuit of vague remedial goals. Some will see in this history above all an assault on Indian tribes as collective entities. Others — I am one — will be moved to horror above all by the flagrant violations of individual and family rights. We should take care not to repeat such violations in pursuit of new remedial objectives.

This report discusses how in 1978 Congress enacted the Indian Child Welfare act (ICWA) in response to legislative findings of harm caused to Indian children, their families, and tribes by the high separation rate of Indian Children from their homes and cultural environments.

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