Arizona Court of Appeals Upholds Rights of Parents Adopting Native American Children

The Goldwater Institute applauded a decision by the Arizona Court of Appeals today that upheld the rights of adoptive parents in a case involving the controversial Indian Child Welfare Act.  That Act—which made headlines in a recent unrelated case involving a six-year-old California girl named Lexi—gives tribal governments broad powers to block adoption of Indian children by non-tribal members.  The Arizona decision involves a two-year-old girl known as “A.D.” who was taken from a drug-addicted mother shortly after birth and placed in the custody of a non-Indian foster family.  When the foster parents tried to adopt her, the Gila River Indian Community asked judges to transfer the case its own tribal court to block the adoption.  In their decision today, the judges held that the tribe acted too late.

“This decision comes as a great relief,” said Adi Dynar, the Goldwater Institute attorney who argued the case.  “But it just highlights the problems with the Indian Child Welfare Act.  This law creates a separate and unequal legal system for children of Native American ancestry.”

Dynar is part of the team of Goldwater Institute lawyers challenging the constitutionality of the Indian Child Welfare Act in a federal civil rights case in Arizona federal court.  A.D. is one of the children involved in that case, as well.

The Act, passed in 1978, applies to children who are “eligible” for membership in an Indian tribe.  It gives tribal governments powers equal to—and sometimes greater than—the rights of birth parents.  “Even if an Indian parent wants her child adopted, and doesn’t want the Act to apply, the tribe can override those wishes and block the adoption,” explained Dynar.

Federal law forbids racial discrimination in all adoption cases—but contains one exception: Indian children.  “They’re the only people it’s legal to discriminate against on the basis of race,” said Dynar.  “But it’s important to remember: all Indian children are citizens of the United States, entitled to constitutional protections.”

Today’s court decision noted that the tribe had many opportunities over the previous two years to find A.D. an adoptive home with tribal members, but none proved workable.  Only after the birth mother’s parental rights had been terminated by court order did the tribe try to take over the case.  “By not moving to transfer jurisdiction before termination of the biological parents’ rights,” the court held, “the [tribe] effectively waived its right” to do so.

Because the Act tries to block adoptions of Indian children by non-Indians, Native American children are often stuck in foster care much longer than children of other races, noted Dynar.  And because the Act doesn’t focus on the child’s best interests, courts often don’t consider a child’s psychological need for stable and permanent homes.  That means Indian children are often moved from one home to another through the course of their lives.

“We’re very grateful that the court has laid this case to rest and ensured that A.D. will have a bright future with a loving adoptive family,” Dynar said.

Learn more about the Goldwater Institute’s work to ensure equal protection for all children here.