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U.S. Supreme Court will not hear case to decide the fate of equal protection for Native American children

October 30, 2017

Phoenix—The U.S. Supreme Court has decided not to take a case that would have determined whether Native American children would be guaranteed rights equal to all other American children.

The Court announced today that it denied the petition for certiorari in S.S. v. Colorado River Indian Tribes, a case centered on the legality of the Indian Child Welfare Act (ICWA), a federal law that subjects Native American children to different rules in child welfare cases than the rules that apply to all other American children. In this case, the father of two Arizona teenagers filed a lawsuit to take full custody of them, asserting that their mother had violated court orders by moving them out of state. ICWA requires that for Indian children, a court must find “beyond a reasonable doubt” that the child is truly in danger in his or her living situation. “A judge would normally decide a child welfare case based on the child’s best interest, but due to ICWA, the rules for Native American children are different—and they make it more difficult to remove a child from harm’s way,” Goldwater Institute Attorney Adi Dynar said.

Because of the Supreme Court’s denial of cert petition, the decision from the Arizona Court of Appeals will stand. Earlier this year, the Court of Appeals ruled against the teenagers’ father on the grounds that he had not done enough to help their drug-abusing mother before seeking to end her parental rights and that he failed to show proof of unsuccessful “active efforts” to stop the breakup of the family as required under ICWA. For non-Indian children, only “reasonable steps” to encourage neglectful parents to care for their children are required. Rideout Law, PLLC, an Arizona law firm, litigated the case in the lower courts.

“ICWA clearly discriminates against Indian children, subjecting them to a substandard set of rules solely on the basis of their race,” said Timothy Sandefur, vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. “Native American children deserve the same protections provided to all other American children. While we are disappointed with the Supreme Court’s decision not to hear this case, we will continue to work to give Indian children these protections.”


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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