Equal Protection for Indian Children

This case involving the Indian Child Welfare Act is particularly tragic. The parents of three young California children were killed in a car accident. Although their father was a member of the Miwok tribe, the family never resided on the reservation—in fact, they lived in a different county altogether. But when their mother’s family took the children in—as their deceased parents wanted—their father’s relatives, who live on the reservation, obtained an order from the tribe’s own court commanding that the children be sent to live with their father’s relatives, instead. A federal judge blocked that order, and the case was sent to California state court. But tribal officials have now demanded that the court apply ICWA to the case, including its race-based placement rules that essentially require all “Indian children” to be placed with Native American adults instead of non-Natives. All of this despite the fact that the children have no political or cultural connection to the tribe; their only relationship to the tribe is the blood in their veins.

Unfortunately, some California courts have held that the “best interests of the child” test that applies to children of all other races doesn’t apply to Indian children—and the tribe in this case agreed. “Once ICWA applies,” it argued in one brief to the court, “best interests analysis does NOT apply.”   As part of our Equal Protection for Indian Children project, the Goldwater Institute has asked the California Supreme Court to step in and block application of ICWA’s separate-and-unequal rules for Native American kids.