The Goldwater Institute filed a brief today in the Arizona Court of Appeals urging the judges to reject an effort by a Phoenix-area Indian tribe to seize control over a tragic child custody case. The lawsuit is just the latest example of the abuses made possible by the Indian Child Welfare Act (ICWA), a federal law that, although passed with the good intention of protecting Native American children from harm, has now become the single biggest obstacle to protecting Native children from abuse and neglect.
One thing ICWA’s authors hoped to do was to protect the authority of tribal governments to decide child custody cases involving children living on reservations. But in recent years, tribal officials have twisted the law’s language to demand power to decide cases involving kids who don’t live on reservation and never have. Ignoring centuries-old legal rules of jurisdiction, these tribal governments sometimes issue commands to state judges, insisting that they turn over control of lawsuits involving children who have no cultural or social affiliation with the tribe, but just happen to have some amount of Native American DNA in their blood.
In a 2018 case, for example, a tribe in Arizona demanded that Ohio judges relinquish control over a case involving a little boy who had lived all his life in Ohio with an Ohio family, and had never even visited Arizona. The tribe wanted to place him in a family of strangers he had never met in a state he had never been to. Fortunately, we were able to defend him, winning a ruling from the Ohio Court of Appeals that declared the tribe’s order void for lack of jurisdiction.
But now, the same tribe is trying the same thing closer to home: ordering that a custody case involving a Native child who was legally adopted by a non-Native mother be sent to tribal court, even though the child doesn’t live on reservation. Tribal officials based that order on a provision of ICWA that allows tribal governments power to decide cases involving children who are “wards of the court.” But judges across the country have already made clear that this only applies to kids who reside on tribal lands. It doesn’t allow a tribe to arbitrarily declare any child it wants a “ward” and use that to seize control of cases that are already in state court—cases that involve children who may have no connection to a tribe other than some long-distant ancestry.
In this case, a Native child was legally adopted by a non-Native mother—but the mother then tragically died. Ordinarily, in such a circumstance, family members or friends could become legal guardians of a child through a simple court order. But that effort was blocked in this case by the tribe, which declared the child a “ward” and demanded that state judges hand her over, so that the tribe could place her with adults who are of the “right” race. Now, an Arizona appellate court has been asked to decide whether the tribe was acting within its legal authority.
As we explain in our brief, the rules of jurisdiction are part of the bedrock idea of due process. Courts are only allowed to decide cases involving people who have some connection to that court—and the fact that a person fits one racial profile rather than another is certainly not good enough. A few years ago, a federal court criticized tribes for engaging in “jurisdictional gamesmanship” in cases involving ICWA. And this case is just the latest example.
Sadly, these “games” are no fun for the kids themselves. ICWA was supposed to protect the best interests of Indian children. But today it frequently blocks Native children from getting the care and protection they need—thanks in part to the way many tribal government officials use it to expand their power, rather than to benefit the kids involved.
Read our brief here. You can learn more about our work defending Indian children against ICWA’s unjust burdens here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
