Goldwater Urges Supreme Court to Review Tribal Court Power in ICWA Cases

The Goldwater Institute today filed a brief in the U.S. Supreme Court asking the justices to review a Minnesota case in which a tribal court asserted power to decide a case involving non-members. It’s just the latest example of the extreme and unconstitutional provisions of the Indian Child Welfare Act (ICWA).

ICWA—which is also being reviewed by the Court in another case, called Brackeen—gives tribal judges power to decide child welfare cases even when those kids aren’t members of a tribe. That’s because the Act defines “Indian child” as a child who is simply eligible for tribal membership, based on biological factors alone. As a result, tribes sometimes claim the right to decide the fates of children who have no actual relationship to that tribe.

One of the most extreme examples in recent years involved a child known as C.J. Jr., who was born in Ohio, and lived his whole life in Ohio with a foster family who had also always lived in the state. But because his biological ancestry made him eligible for membership in a Phoenix area-based tribe, the tribal court issued an order demanding that C.J. be sent to live with strangers on the reservation—even though the child had never even visited Arizona. (Fortunately, the Goldwater Institute and our allies at the Pacific Legal Foundation were able to defeat that effort, and C.J. was allowed to stay with his Ohio family.)

As our brief in the Minnesota case explains, tribal governments have even claimed the power to decide cases involving children who are not eligible for membership in that tribe. In a recent Alaska case, one tribe asked another tribe to decide the fate of a child whose foster parents were hoping to adopt him. The second tribe did so—and ordered the child sent to New Mexico—even though he wasn’t eligible for membership in that tribe.

The Minnesota lawsuit involves a family who are not members of the tribe, but whose future must now be decided by that tribal court—based solely on the child’s biological ancestry. And that’s a problem because tribal courts aren’t required to obey the Bill of Rights. Procedures that would never be permitted in a federal or state court are allowed there—sometimes to the detriment of children’s futures.

For years, Goldwater has done more work than any other organization in the country to defend Native children and the adults who love them from ICWA’s unconstitutional and unjust burdens. We’ve asked the Court to take the Minnesota case to make clear that the basic constitutional principles limiting the power of courts be enforced in all cases—regardless of people’s race.

You can read our brief here, and you can learn more about what we’re doing to ensure equal protection for Native children here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.