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NEW: TX Judge Says ICWA Violates American Indian Children’s Right to Equal Treatment

October 4, 2018

October 4, 2018

Phoenix—A federal judge in Texas today ruled that a federal law subjecting Indian children to substandard treatment solely on the basis of their race is unconstitutional. The case is a major victory in a legal campaign to reform the Indian Child Welfare Act (ICWA), a 1978 federal law that overrides state child-welfare law and essentially bars adoption of Indian children by non-Indian adults.

“Today’s decision is a great victory for the rights of Native American children throughout the United States, who deserve the same strong protections against abuse and neglect as their peers of other races,” said Timothy Sandefur, Vice President for Litigation at the Goldwater Institute, which litigates ICWA cases through its Equal Protection for Indian Children project and filed a friend of the court brief in the case. “ICWA denies them that protection and prioritizes their race over all other considerations. That’s immoral, and today’s decision rightly holds that it’s also unconstitutional.”

The lawsuit was brought by a group of parents, children, and state attorneys general who argued that ICWA’s restrictions on child-protection, foster care, and adoption violate constitutional prohibitions on racial discrimination and intrude on matters that the Constitution reserves to the states.

Among the plaintiffs are the foster parents of a 2-year-old boy referred to as A.L.M., who met with difficulty when they filed the paperwork to legally adopt him. Because the boy is part Navajo and part Cherokee, he qualifies as an Indian child under ICWA. Thus even though A.L.M.’s birth parents approved of the adoption, tribal officials were allowed to object and to begin a process to send him to live with strangers on a New Mexico reservation instead.

A state court agreed, and only quick action by the Texas Court of Appeals barred A.L.M. from being taken away from the only parents he has ever known. Tribal officials later allowed the adoption to proceed, state attorneys general from Texas, Louisiana, and Indiana filed the federal lawsuit on behalf of A.L.M. and other kids whose right to equal treatment before the law is violated by ICWA.

ICWA, Sandefur notes, overrides state law of child welfare when it comes to Indian children. And ICWA does not apply only to children who are tribal members, but also to children who are “eligible” for membership—which depends solely on genetic ancestry. ICWA even overrides the “best interests of the child” rule that applies to cases involving children of other races. “It’s illegal to delay or deny an adoption based on a person’s race, with a single exception: Indian children,” said Sandefur. “That’s wrong. It’s time that these kids got the same strong protections all other kids receive.”

Read more about Brackeen v. Zinke here.


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.



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