Equal Protection for Indian Children

Samuel and Samantha (not their real names) are two Arizona teenagers—15 and 17 years old—who are the subject of a legal dispute between their parents.  It’s the kind of case that goes on in countless courts across the nation every day.  In such cases, courts ordinarily apply the “best interests of the child” rule.  But not in Samuel and Samantha’s case.  Thanks solely to the fact of their genetic ancestry, Arizona courts are required to apply a different rule—one that overrides the “best interests” rule, and that makes it harder to protect them against mistreatment.

That’s because Samuel and Samantha have enough “Indian blood” to qualify for membership in the Colorado River Indian tribes.

The lawsuit began when their father, Garrett—himself a member of the Colorado River Indian Tribes (CRIT)— filed a lawsuit seeking to take full legal custody—in a procedure called a “termination of parental rights” or TPR proceeding—on the grounds that their mother had violated court orders regarding their care and had illegally moved the children out of the state.

In most cases, a judge would decide a TPR proceeding based on the minors’ best interests under state law.  But because Samuel and Samantha qualify for tribal membership, their case is subject to the Indian Child Welfare Act, a federal law that sets different rules for child welfare cases involving Indian children.  These rules provide that before a court can approve a TPR proceeding, it must find “beyond a reasonable doubt” that the children are at risk of severe harm, and that evidence must come from expert witnesses.

For white, black, Hispanic, or Asian children, or Native American children who fall below CRIT’s tribal requirement of 25% “Indian blood,” the court must find by “clear and convincing evidence” that there’s sufficient reason to grant a TPR motion—the same rule that all 50 states and the District of Columbia use—and expert testimony isn’t necessary.

The Act also bars a court from approving a TPR proceeding until it’s proved that “active efforts” have been made to keep the children with their birth parents—even if those birth parents are abusive or neglectful. This rule, too, only applies to children with enough Native American blood.  And the Act isn’t limited to reservations—it applies to any child who fits the genetic profile, anywhere in the country.

These rules make it harder to protect Native American kids against abuse or neglect, and they even override the wishes of parents—even Indian parents like Garrett.  Although the Act was written to protect Native American parents against wrongful acts by state child welfare officials—who in past decades sometimes took kids from families on insufficient grounds—in practice it’s often applied even in private disputes between parents where no government officials are involved.  That’s what happened in Samuel and Samantha’s case.  And that’s why, as part of the Goldwater Institute’s Equal Protection for Indian Children (EPIC) project, we’re asking the U.S. Supreme Court to take as the latest in a series of challenges to provisions in the Act that harm America’s most vulnerable citizens.