Frequently Searched

Ensuring Equal Protection for Native American Children

Challenging the Indian Child Welfare Act

What Is the Indian Child Welfare Act?

The Constitution guarantees equal protection to all Americans. But state and federal law denies equal protection for children of Native American ancestry. Under the 1978 Indian Child Welfare Act (ICWA), these vulnerable kids are subjected to a separate, less-protective set of laws solely because of their race—laws that make it harder to protect them from abuse and neglect and virtually impossible to find them loving, permanent adoptive homes. The Goldwater Institute is fighting in courts nationwide to ensure that Indian children have the same constitutional protections afforded their peers of other races.

ICWA is a complicated law with many constitutional problems. Among other things, it:

  • Does not apply just to children who are tribal members, but to children who are “eligible” for membership—based solely on their genetics
  • Overrides the “best interests of the child” standard that applies in lawsuits involving kids of other races
  • Imposes race-matching requirements in foster care and adoption cases, so that Indian children must be adopted by “other Indians”—regardless of tribe—rather than by families that are willing to give them homes
  • Gives tribal governments power to veto the wishes of parents
  • Bars state agencies from removing kids from abusive homes
  • Forces state child welfare agencies to send kids to other states, or to reservations, where the children have ever lived
  • Imposes different rules of evidence on lawsuits that involve “Indian children”
  • Allows courts to do what federal law normally prohibits: to deny or delay adoption cases based on the child’s race

All Native American children are citizens of the United States, entitled to the same protections that apply to children The Goldwater Institute’s Equal Protection for Indian Children project is devoted to ensuring that the individual rights of vulnerable kids take precedence over racial considerations. Here are just a few of the cases we’ve been involved in:\

Ensuring Best Interests of the Child

Goldwater Institute attorneys prevented a Phoenix-area tribe from using ICWA to separate a 3-year-old child known in legal documents as “A.D.” from the only family she had ever known and send her to live with another family on a reservation she’d never lived on. The Arizona Supreme Court ruled that tribes may not invoke ICWA long after a child has been settled in a foster family. In another case, two tribal governments demanded that a 2-year-old Texas child known as “A.L.M.” be taken away from the family he’d lived with for most of his life, and that he be sent to New Mexico, instead, to live with a race-matched family he’d only met for three hours. Our participation in that case helped persuade the tribe to back down. In yet another case, we represent a 5-year-old Ohio boy called “C.J. Jr.” in a case in which an Arizona tribe is trying to take him away from his Ohio foster family and force him to live in Arizona with strangers he’s never met on a reservation he’s never even visited. The Institute is also fighting back against a northern California tribe that is trying to take three orphaned children from their non-Native relatives and send them to live with Native relatives, simply because of the children’s ethnicity.  In another case in Minnesota, we’re helping defend the rights of a mother.

Defending the Rights of Indian Parents

ICWA also violates the rights of Indian parents themselves, when they try to make decisions about their own children. We represented an Arizona father—a tribal member—who tried to terminate the rights of his children’s mother due to her neglect and drug abuse—a routine matter in cases involving kids of other races, but ICWA virtually forbids it in cases involving Indian children. Unfortunately, the court ruled against the father. In a case in Washington State, we helped represent a tribal member mother who sought to sever the parental rights of her ex, so that her new husband could adopt her child. Even though the tribe supported her, the state Supreme Court ruled that ICWA barred that choice. We’re also representing tribal members in cases in Arizona and Minnesota who are trying to defend their children’s interests—but find that ICWA bars the way.

Challenging ICWA’s racial injustice

Alongside our state-based ICWA litigation, the Goldwater Institute brought a federal class-action lawsuit on behalf of children across Arizona who are subject to ICWA, arguing that it is an unconstitutional form of racial discrimination that harms at-risk kids. That case is now pending in the 9th Circuit. In the meantime, we’ve joined with Attorneys General in Ohio, Texas, Indiana, and Louisiana to bring similar cases in state and federal courts across the country, and have published path-breaking scholarship on the ways ICWA harms Indian kids.

Donate Now

Help all Americans live freer, happier lives. Join the Goldwater Institute as we defend and strengthen freedom in all 50 states.

Donate Now

Since 1988, the Goldwater Institute has been in the liberty business — defending and promoting freedom, and achieving more than 400 victories in all 50 states. Donate today to help support our mission.

We Protect Your Rights

Our attorneys defend individual rights and protect those who cannot protect themselves.

Need Help? Submit a case.

Get Connected to Goldwater

Sign up for the latest news, event updates, and more.