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Fighting to Achieve Equal Protection for Indian Children

October 7, 2015

Adoptions by a child’s stepparents are usually routine. Except when they involve Native American children. When the stepparent of a Native American child tries to adopt the child, the adoption is actively discouraged and sometimes actually prevented by state and federal law. This was the unfortunate case in a recent stepparent adoption in Washington state.
“Baby boy T” has at least one-quarter Native American heritage from his Birth Mother while his Birth Father has no Native American heritage. T’s Birth Father has a criminal past; he was violent toward T’s Birth Mother, which resulted in the couple’s divorce. T’s Birth Father did not maintain a relationship with T before or after the divorce, so the only father figure T has known in his life is his Stepfather. Because T’s Birth Father was abusive and maintained no contact with T, the Birth Mother, Birth Mothers Tribe and the trial court all supported T’s adoption by his Stepfather. But when his Stepfather sought to adopt T, his Birth Father used the so-called “Indian Child Welfare Act” to derail the adoption.
Because T has Native American heritage, the appeals court said, the Indian Child Welfare Act requires the court to disregard the family bond between T and his Stepfather and instead rule in favor of maintaining the (non-existent) bond between T and his Birth Father, even though his Birth Father is not Native American. The court clarified that Stepparent adoptions in Washington state hinge solely on the child’s race, regardless of the birth father’s race. ICWA denies T’s Stepfather the right to authorize life-saving medical procedures for T, allowing T’s absent Birth Father to remain in control of those decisions. ICWA subjects T to a lifetime of legal and moral uncertainty, and prevents his Stepfather from fulfilling a meaningful role in T’s upbringing—all because of T’s race.
Alone among American children, children with Native American ancestry are given separate and substandard treatment because of the Indian Child Welfare Act. In routine adoption proceedings, Washington state law instructs courts to protect the rights of all parties—children, birth parents, and stepparents—by making adoption decisions that are in the best interest of the child. But under ICWA, Native American children’s rights are sacrificed in the name of perceived tribal interests. Such treatment flies in the face of fundamental principles of equal protection, due process, and federalism embedded in our Constitution.
Courts need not ignore the unique cultural background of an individual child in making a best interest determination. But courts cannot make decisions based solely on a child’s race—that’s unconstitutional race based discrimination.
The Goldwater Institute is fighting to protect children from government-mandated, race-based discrimination. The Indian Child Welfare Act prioritizes the perceived desires of tribes at the expense of the best interests of children, subjecting children with Native American ancestry to a different standard than all other American children—and that’s not allowed under the U.S. Constitution. To end these injustices, the Institute filed a class action lawsuit in Arizona and a brief in T’s adoption appeal to the Washington Supreme Court. The Institute will continue to fight to achieve Equal Protection for all children, regardless of their race.

Amicus Brief in Welfare of T.A.W.



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