Allison Krause Elder has published “Indian” as a Political Classification: Reading the Tribe Back into the Indian Child Welfare Act in the Northwestern Journal of Law & Social Policy. Here is the abstract:
In the summer of 2018, the Ninth Circuit will consider an appeal from the dismissal of a constitutional challenge to the Indian Child Welfare Act (ICWA). Brought by a conservative think-tank, this case frames the ICWA as race-based legislation, violating equal protection by depriving Indian children of the same procedures as non-Indian children in child custody cases. In reality, the ICWA seeks to protect the interests of tribes, Indian families, and Indian children by establishing special procedures and obligations in Indian child custody cases. On its face, the ICWA is concerned not with the race of children, but with the special status of tribes and their political membership. As discussed in this Paper, a racial understanding of the ICWA is inconsistent with both the statute itself and the historically mixed political-racial status of tribes in the United States. While the Supreme Court created an opening for a race-based view of the ICWA in Baby Veronica, prior precedents embraced a political understanding of “Indian” where Congress intended to support tribal sovereignty. This Paper argues that any fair reading of the ICWA must treat “Indian” as a political rather than racial classification, and that the ICWA cannot be subject to strict scrutiny under equal protection. To do otherwise is to read the tribe out of the Act, which is not just inconsistent with the statute, but dismissive of the unique history of tribes in our nation.