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:
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:\
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.
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.
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.
Carter v. Washburn (also called A.D. v. Washburn) (Arizona federal court)
Gila River Indian Community v. Dep’t of Child Safety (Arizona)
In re. Alexandria P. (California)
In re. C.J. Jr. (Ohio)
S.S. v. Colorado River Indian Tribes (Arizona)
Renteria v. Superior Court (California)
In re. J.P.C. (Arizona)
In re. T.A.W. (Washington State)
In re. A.L.M. (Texas)
Brackeen v. Zinke (Texas federal court)
In re. A.J.F. (Minnesota)
Fisher v. Cook (Arkansas)
In re. Y.J. (Texas)
“Death on a Reservation” by Mark Flatten
“Suffer the Little Children” by Timothy Sandefur
“Family Malpractice” by Timothy Sandefur
“Escaping the ICWA Penalty Box” (long version) by Timothy Sandefur
“Escaping the ICWA Penalty Box” (short version) by Timothy Sandefur
“Native American Foster Children Suffer under a Law Originally Meant to Help Them” by Elizabeth Stuart
“Put the Kids First” by Naomi Schaefer Riley
“Families, Tribes, and the Indian Child Welfare Act” by Timothy Sandefur, Matthew L.M. Fletcher, Kristen Carpenter, and Walter Olson
“Recent Developments in Indian Child Welfare Act Litigation: Moving Toward Equal Protection?” by Timothy Sandefur
“The Unconstitutionality of the Indian Child Welfare Act” by Timothy Sandefur
“The Federalism Problems with the Indian Child Welfare Act” by Timothy Sandefur
“The Brutal Racial Politics of the Indian Child Welfare Act” by George Will
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