How did 5-year-old Antonio "Tony" Renova go from what was by all accounts the happy and safe Montana home of Jeff and Christy Foster to being beaten to death in November allegedly by his biological parents and a guest in their apartment?

In one sense, the answer is obvious. It was the Crow Tribal Court that last year decided to remove Tony from the Fosters’ care — the couple who had cared for him since he was three days old. His biological parents, Crow tribe members Emilio Emmanuel Renova Sr. and Stephanie Grace Byington, were in jail when the child was born, having both been charged with violent felonies (including child endangerment). But in order to understand why the court was able to do this and why we allow a lower standard of child safety and well-being in this country for native children than for other children, we need to look to the 40-year-old piece of legislation known as the Indian Child Welfare Act (ICWA).

What lead up to Renova's tragedy

When ICWA was passed with bipartisan support in 1978, the goal was to prevent state child welfare agencies from removing Indian children from their parents and placing them outside of their communities because of poverty or bigotry. Over time though, ICWA has created a separate and unequal child welfare system. Indeed, one of the first questions a social worker must answer when deciding whether to remove a child from a home is whether that child is Indian, because every decision may be different as a result.

Antonio Renova

While Indian foster children may be placed with a non-Indian family temporarily, it is very difficult for them to be adopted by one — 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.

No other family or tribe members apparently stepped up to take care of Tony in his parents’ absence, so the tribe placed him with the Fosters. Hundreds showed up for a recent vigil where neighbors, families from his school and fellow church members remembered him as a happy child. Christy’s father told The Great Falls Tribune, “Tony was a little boy who loved to play in the mud, throw pebbles in the water and watch cartoons about Mickey Mouse.”

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Like all white foster families who take in Indian children, the Fosters were told early on it was unlikely they would be able to adopt Tony, because he was a member of the Crow Tribe. The best they could do was to try to show the tribe that they were exposing him to the Crow culture. So they took the boy to powwows and other cultural events, sometimes traveling long distances to get there.

From slavery to mass incarceration: America has separated families for centuries

But that was not enough. Because the Fosters were not members of the tribe, they could not appear before the court and could only find out about the case from the Crow social worker who was assigned to supervise Tony. In 2018, they were instructed to have Tony meet with Renova and Byington. There were a few supervised visits and then in March of 2019, the Fosters were instructed to turn Tony over to his parents.

The parents did not want the Fosters to bring a bed or any of his toys, and any communication with the only people he had known as his mother and father were cut off. The Fosters were not informed when Tony was brought to a local emergency room for bruising on his face in June. And they were not informed about his death by authorities.

The horrifying death of a child

The circumstances of that death are gruesome. When police found Tony, he was unresponsive and bleeding from the nose and mouth, with bruises on his knees, torso, ribs and face. His leg also appeared to be broken. He had a gash on his head, and there appeared to be “brain matter” on the carpet. Another person who spent time at the house said they had shared several cases of beer and that the boy had been held under a cold shower as punishment for being awake at night. There was blood in the bathtub as well. And the Byington told police they had beaten the boy before with electrical cords.

The safeguards we have for other children in this country were not in place for Tony Renova. While it is not unheard of for adults with criminal records to regain custody of a child, state courts impose a high bar for violent felons to demonstrate their rehabilitation. It’s hard to imagine that any non-Indian family would have met the threshold. As scandals like the regular placement of foster children with known sex offenders on North Dakota’s Spirit Lake Reservation have shown, there is little oversight of tribal courts and child welfare services.

And the effects on native children have been devastating. The rate of substantiated maltreatment for Indian or Alaska Native children is 15.2 per 1000, almost twice as high as for white or Hispanic children. Rates of sexual abuse are also disproportionately high — a 2001 report found that, among Indian children, one in four girls and one in six boys is molested by the age of 18. It’s not surprising then, that Indian kids are “overrepresented in foster care at a rate 2.7 times greater than their proportion in the general population.”

The Adoption and Safe Families Act, which was passed to ensure children would not languish in foster care for years, requires states that receive federal foster care funds (which is to say, all of them) to file a petition to sever parental rights if a child has been in care for 15 of the past 22 months. The ASFA has exceptions if the state says that a termination of parental rights (TPR) is not in the child’s best interests, but ICWA has defined a child’s best interests to be placement with an Indian family, so if one is not available, then a termination of parental rights is frequently not ordered.

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The Multi-Ethnic Placement Act (MEPA) was also passed to ensure that social workers would not discriminate based on race or ethnicity in adoption, instead focusing on finding a safe and permanent home for a child. But MEPA does not apply to Indian children, for whom race is deemed more important than other factors.

ICWA’s provisions seem to have superseded all of the other laws and regulations we have in place to ensure the safety of America’s most vulnerable children. In November, the Fifth Circuit agreed to rehear a lawsuit filed in Texas claiming the ICWA discriminates on the basis of race and infringes on states’ rights. For the sake of children like Tony Renova, let’s hope they see the law for the unconstitutional and dangerous policy it is.

Naomi Schaefer Riley is a resident fellow at the American Enterprise Institute studying child welfare. Follow her on Twitter: @NaomiSRiley

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This article originally appeared on USA TODAY: Indian Child Welfare Act: Law that paved the way for a child's death