Escaping the ICWA Penalty Box: In Defense of Equal Protection for Indian Children

Children's Legal Rights Journal, Vol. 37(1) (2017), pp. 6-80

80 Pages Posted: 17 Jun 2016 Last revised: 13 Apr 2017

Date Written: June 15, 2016


The Indian Child Welfare Act (ICWA) was originally designed to prevent the breakup of Indian families and to protect children and parents from abusive state government officials. But in practice, it often harms children, delaying or denying them placement in stable and loving homes, compelling their reunification with abusive birth parents, and mandating procedures that deprive children of the protection they need.

Part I of this article provides a brief overview of the origin and structure of ICWA. Part II focuses on six provisions of the Act that place Indian children in what we term “the ICWA Penalty Box,” depriving them of critical legal protections. Part IV addresses the question of whether ICWA’s differential treatment of Indian children qualifies as unconstitutional racial discrimination, and the “Existing Indian Family Doctrine” — a legal theory that state courts developed in an effort to avoid the equal protection problems that arise from an undiluted application of ICWA’s literal language Because this article focuses primarily on cases involving children who are not domiciled on reservations, and have no cultural connection to tribes — but who are eligible for membership solely on account of their ancestry — not every argument presented here will necessarily apply to all applications of ICWA. But Part IV does address a basic question of constitutional principle that applies to all cases: is equal treatment before the law appropriate for Indian children?

Though enacted with good intentions, the provisions of ICWA critiqued here harm Indian children, deprive them of the “best interests of the child” standard, move them beyond the reach of state protective services, curtail their rights to due process and equal protection, subordinate their interests to those of tribal governments, and cripple efforts to rescue them from abuse and find them stable homes. The “ICWA Penalty Box” obstructs the ability of American Indian children to realize the benefits of their American citizenship. However noble the intentions behind ICWA’s passage, it is today often a cause of abuse. All children, regardless of their ancestry, deserve to be regarded as individuals, and their best interests should be the overriding consideration in cases involving their welfare. The United States owes American Indian children nothing less.

Keywords: ICWA, Indian Child Welfare Act, Foster Care, Adoption, Interracial, Existing Indian Family Doctrine, EIFD, EIF, Baby Veronica

Suggested Citation

Sandefur, Timothy, Escaping the ICWA Penalty Box: In Defense of Equal Protection for Indian Children (June 15, 2016). Children's Legal Rights Journal, Vol. 37(1) (2017), pp. 6-80. Available at SSRN: or

Timothy Sandefur (Contact Author)

Goldwater Institute ( email )

500 E. Coronado Rd.
Phoenix, AZ 85004
United States
(602) 462-5000 (Phone)
(602) 256-7045 (Fax)


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