Goldwater Institute lawyers are in the Minnesota Supreme Court today to argue on behalf of Native American children who are denied the protections that children of other races enjoy, due to the federal Indian Child Welfare Act (and the Minnesota state version of that law, called the Minnesota Indian Family Preservation Act). As part of our Equal Protection for Indian Children project, we’ve joined up with Mark Fiddler, a member of our American Freedom Network of attorneys, to argue that the discrimination imposed by these laws harms the nation’s most vulnerable children and violates the Constitution’s ban on race-based laws.
The lawsuit concerns twins were born in 2022 with severe medical problems as a result of their mother’s prenatal drug abuse. One of the twins was actually born dead, but was revived in the delivery room, thanks to heroic doctors who cared for the babies at Minnesota’s world-famous Mayo Clinic. The babies were immediately placed in the care of a foster family—our clients, who are referred to in court documents as K.R. and N.R. And for more than a year, this caring couple provided the newborns with the love and care—and medical attention—that they needed.
Had the children been born white, black, Asian, Hispanic, or any other race, their future would have been decided based on a Minnesota law that says that the “best interests of the children” take precedence over other considerations. But because the children are eligible for membership in an Indian tribe—based exclusively on the blood in their veins—federal and state law classify them as “Indian children.” As a consequence, that “best interests” test doesn’t apply, and instead, courts are required to apply a race-based set of rules regarding their custody.
And that meant that after living with K.R. and N.R. for more than the first year of their lives, the twins were suddenly taken from them by state officials and sent to live hundreds of miles away on a reservation in northern Minnesota with someone they had never even met—against even their mother’s wishes.
Thus began a legal saga that has now reached the Minnesota Supreme Court, where the justices have been asked to decide whether these state and federal laws are constitutional.
Tribal government officials argue that treating “Indian” children differently from non-“Indians” is warranted by U.S. Supreme Court precedent that says that membership in a tribe is a “political” rather than a “racial” distinction, and therefore doesn’t violate the Constitution’s ban on race-based discrimination. But the truth is that these laws don’t depend on any political or cultural connection with a tribe. If a child fully participates in tribal culture and considers himself a member of the tribe, he’s not an “Indian child” under these laws if he lacks the blood-quantum required by tribal rules. And if he has that blood-quantum, then no lack of social or political connection to a tribe will ensure that he receives equal treatment.
The Indian Child Welfare Act and its state versions were passed more than 40 years ago with good intentions: to prevent the unnecessary breakup of Native families, which had resulted from the anti-Indian attitudes of previous generation. But today, these laws stand as the foremost obstacle to the protection of Native kids against abuse, neglect, and other harms. Last year, the U.S. Supreme Court was asked to decide whether that discriminatory treatment is constitutional—but it declined, concluding that nobody in that lawsuit had the “standing” required to raise those questions. K.R. and N.R., however, have that standing—and they’re prepared to go to the nation’s highest court if necessary to vindicate the rights of all “Indian children” to equal treatment before the law.
You can learn more about the case and our Equal Protection for Indian Children project here.
