NRPLUS MEMBER ARTICLE F ind an Indian. Any Indian. That’s essentially the approach the United States takes when a child winds up in foster care. Quite simply: Indian children who wind up in foster care are second-class citizens. A four-decades-old law prioritizes generic Indian culture over the welfare of individual children who find their way into the foster-care system. The Supreme Court was just given the opportunity to help these most vulnerable children, but it refused.

In Haaland v. Brackeen, the lead plaintiffs were a non-Indian couple who needed an emergency judicial order to keep the child who knew them as family. The Brackeens took the child in — he had drugs in his system when he was born — at ten months. Neglect was the reason he was removed from his biological parents, and about a year later parental rights were severed. As is typical in foster care, a family member who is willing to take the child is sought. If one is not found, another tribe member should be found when the child is an Indian, according to the 1978 Indian Child Welfare Act. If a member of the tribe can’t be found, another Indian will do, with no concern for the child’s flourishing in the foster family to which he has become accustomed.

So, a few months after the parents’ rights were severed (the biological mother surrendered them, and the biological father didn’t show up to court), the child was going to be taken from the Brackeens and given to a Navajo couple in Albuquerque after spending two hours with them — even though every adult who was paying attention knew that the child would be best off if he remained with the non-Indian family who had become his family. The Indian family ultimately decided not to adopt him, and the tribal officials gave up their objections to his adoption by the Brackeens.

But even then, the Indian Child Welfare Act allows an Indian child to be taken from non-Indian parents two years after an adoption if an Indian family decides they want the child. It doesn’t take a social-work degree to know that’s cruelty to a child.

“The Indian Child Welfare Act was originally intended to prevent social workers from removing Indian children from their parents and placing them with white families simply because of poverty or bigotry,” Naomi Schaefer Riley has explained. She is the author of The New Trail of Tears: How Washington Is Destroying American Indians and No Way to Treat a Child: How the Foster Care System, Family Courts, and Racial Activists Are Wrecking Young Lives. “Over time, though, the ICWA has called into creation a separate and unequal child welfare system. In effect, Indian foster children — regardless of whether they live on a reservation, regardless of much or how little of their DNA is Native American, even regardless of their biological parents’ wishes — may be adopted only by other Indians.”

Another non-Indian family who joined the Brackeens in their lawsuit fostered an Indian baby from three days old for two years. They were ably meeting the medical complications, and the biological family continued to support and have a relationship with the foster family adopting the baby. But the tribe objected. Again, the child was going to be sent to another state, so that Indian strangers rather than the family she knew could raise the child.

In his dissent to the majority’s opinion, Justice Samuel Alito wrote:

ICWA requires a State to abandon the carefully considered judicial procedures and standards it has established to provide for a child’s welfare and instead apply a scheme devised by Congress that focuses not solely on the best interest of the child, but also on “the stability and security of Indian tribes.” . . . That scheme requires States to invite tribal authorities with no existing relationship to a child to intervene in judicial custody proceedings. . . . It requires States to replace their reasoned standards for termination of parental rights and placement in foster care with standards that favor the interests of an Indian custodian over those of the child. . . . It forces state courts to give Indian couples (even those of different tribes) priority in adoption and foster-care placements, even over a non-Indian couple who would better serve a child’s emotional and other needs. And it requires state judges to subordinate the State’s typical custodial considerations to a tribe’s alternative preference.

Indian children clearly deserve better than the misnamed Indian Child Welfare Act.

There’s an old objection that pro-choice folks often lodge against pro-life Americans — that we care about babies only before they are born. Pro-lifers do clearly object to abortion because of the humanity of the child in the womb and the belief that women deserve better than pressure to abort. A year after Roe v. Wade was overturned by the Supreme Court, the Indian Child Welfare Act presents an opportunity for people of both positions to find common cause in defending the welfare of vulnerable children. The Supreme Court claimed to want to do such a thing, but it didn’t help matters.

In the hours after the disappointing decision, Riley wrote: “Thanks to the Indian Child Welfare Act, thousands of children have been subject to needless and preventable abuse and neglect that we would never allow for white, Black, Hispanic or Asian children.” She added: “Indian children have been forced to stay in foster care for years on end — longer than children of any other race — despite the availability of safe, loving families willing to adopt them.” An advocate for years for these children, she said: “One can only hope that the majority’s decision to leave the door open to future constitutional challenges means that someday Indian children will no longer be treated as second-class citizens.”

Perhaps the mere fact that the Court has forced more of us to pay attention to this injustice perpetrated on Indian children in America will light a fire for change. It had better, if any of our favored platitudes about children mean anything.

This column is based on one available through Andrews McMeel Universal’s Newspaper Enterprise Association.