Phoenix—As part of its Equal Protection for Indian Children project, the Goldwater Institute has asked the California Supreme Court to take up a case to vindicate the rights of three Native American orphans who are subject to the Indian Child Welfare Act (ICWA), a separate and substandard set of rules governing child welfare cases.
The parents of three Native American children living in central California were tragically killed in a car accident in December 2015. The children’s father had been a member of the Miwok tribe, but the family did not live on tribal lands. Nevertheless, when their mother’s family took in the children—as requested by the late parents—their father’s relatives, including a member of the tribal council, invoked their powers under ICWA to demand that the children be turned over to them. A federal judge blocked that from happening last year, but tribal officials then asked a state court to apply ICWA to the case—which will likely force the court to turn the children over to them—simply because the children are genetically “Indian.” A trial judge agreed. Now Goldwater attorneys are asking the state’s highest court to intervene.
“The application of ICWA to this case would create a clear-cut example of how ICWA totally overlooks the ‘best interests of the child’ standard,” Adi Dynar, an attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation, said. “The tribal court is insisting that these children be removed from a situation their own parents had requested—all on the basis on the children’s race. We are asking the California Supreme Court to step in to ensure that these children received the equal protection they are guaranteed by the U.S. Constitution.”
Earlier this month, the Goldwater Institute released a new policy paper discussing how ICWA stands in the way of equal protection for Native American children. In Escaping the ICWA Penalty Box, Goldwater Institute Vice President for Litigation Timothy Sandefur illustrates the negative impacts the law has had on Native American children, families, and tribes.
“The Indian Child Welfare Act was originally passed to strengthen Native American families, but in many cases, it’s hurting the children it was intended to protect,” Timothy Sandefur, vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and the author of the paper, said. “The California Supreme Court has said that ‘discrimination on the basis of race is illegal immoral, unconstitutional, inherently wrong, and destructive of democratic society,’ but ICWA does exactly that to Native American children. We hope that the court agrees that this unfair, unequal treatment should not apply in this case.”
Read more about the case, Renteria v. Superior Court, here.
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About the Goldwater Institute
The Goldwater Institute drives results by working daily in courts, legislatures and communities to defend and strengthen the freedom guaranteed to all Americans in the constitutions of the United States and all 50 states. With the blessing of its namesake, the Goldwater Institute opened in 1988. Its early years focused on defending liberty in Barry Goldwater’s home state of Arizona. Today, the Goldwater Institute is a national leader for constitutionally limited government respected by the left and right for its adherence to principle and real world impact. No less a liberal icon than the New York Times calls the Goldwater Institute a “watchdog for conservative ideals” that plays an “outsize role” in American political life.
