Fighting for Equal Protection for Native American Children

The Indian Child Welfare Act is a federal law that creates a separate and substandard set of rules for protecting children in need, if those children have Native American ancestry.

Most decisions involving child welfare—whether it be foster care, adoption, or rescuing children from abusive or neglectful families—are made according to the “best interests of the child” standard. Arizona courts have said that judges have an “overriding obligation” to decide cases according to the child’s best interests. But the rules are different for children of Native American ancestry.

Thanks to the Indian Child Welfare Act, courts must decide cases involving them by applying a different set of standards—ones that are often detrimental to the child’s welfare, and even contrary to the wishes of parents themselves. Even though these children are American citizens entitled to full constitutional protection, they are subjected to literal racial segregation in cases involving their future. Most remarkably, this law can even be invoked by non-Indians to prevent Indian parents from making decisions about their own children’s welfare.

As part of the Goldwater Institute’s Equal Protection for Indian Children (EPIC) project, we’ve taken on a series of challenges to provisions in the Indian Child Welfare Act that harm America’s most vulnerable citizens.

That’s why the Goldwater Institute is representing Justine, the mother of an 8-year-old boy we’ll call John (not his real name). Justine is married to Gabriel, and she wants Gabriel, to adopt John legally as his son. After all, they already have a daughter together. In most cases, it would be a simple matter of paperwork for Gabriel to adopt John. But because Justine is a member of an Indian tribe, a separate set of rules applies which make it practically impossible for that adoption to take place.