This week, in a case with implications for current and future Native American children placed in foster care or for adoption, the Goldwater Institute challenged the constitutionality of core provisions of the Indian Child Welfare Act in a class action lawsuit. The lawsuit was filed as part of a project to reform state and federal laws that discriminate against abused, neglected or abandoned Native American children.
“When an abused child is removed from his home and placed in foster care or made available for adoption, judges are required to make a decision about where he will live based on his best interest. Except for Native American children. Courts are bound by federal law to disregard a Native American child’s best interest and place him in a home with other Native Americans, even if it is not in his best interest,” said Darcy Olsen, president of the Goldwater Institute. “We want federal and state laws to be changed to give abused, neglected or abandoned Native American children the same protections that are given to all other American children: the right to be placed in a safe home based on their best interests, not based on their race.”
The Goldwater Institute’s class action lawsuit challenges the constitutionality of Indian Child Welfare Act requirements that make the best interest of an Indian child less important than the desires of an Indian tribe when deciding foster care or adoption placements. For every other American child, decisions are based on their best interest, not their race; this leaves Native American children with fewer legal protections. There is no minimum blood quantum or requirement that a child or his parents have any significant ties to a Native American culture or community before the Indian Child Welfare Act applies; a child with only slight Native American heritage who has never lived on Native American land can be subjected to its requirements.
“While it is important to protect the culture and heritage of Native American tribes, the desires of a tribe should never trump the best interests of a child,” said Olsen.
The Institute has filed a class action on behalf of all off-reservation Arizona-resident children with Indian ancestry in child custody proceedings and the foster, preadoptive or prospective adoptive parents of these children. This case will not impact current or future cases that involve children or parents living on a reservation where a tribal court has jurisdiction; it will change the law so that state courts and agencies cannot discriminate against Native American children.
“We want all Native American children to be protected from being placed in homes where they could be in danger, just like other American children. When children have already endured the trauma of abuse or neglect, it is both grossly immoral and unconstitutional to give them fewer protections under the law based on their race,” said Clint Bolick, the vice president of litigation at the Goldwater Institute. Bolick litigated a class action in Texas in 1995 that was the impetus behind the federal Multi-ethnic Placement Act, which outlawed delays or denials in foster care or adoption placements on the basis of the race, color, or national origin of the child or the adults involved.
A Goldwater Institute investigative report by award-winning journalist Mark Flatten, Death on a Reservation, documents numerous cases in which Native American children were forced to remain in dangerous homes because of their race. In other instances, children were removed from safe homes because their foster or adoptive parents were not Native Americans. Many of these children were sent or returned to homes where there were known sex offenders, where they were physically or sexually abused. In some cases they were killed.
A ten-minute original documentary film narrated by Dr. William B. Allen, the former chairman of the U.S. Commission on Civil Rights, was also released. The film tells the stories of children who have been affected by the federal law and interviews tribal leaders about the misuse of the Indian Child Welfare Act.
The Goldwater Institute also issued a dozen recommendations for changes to federal and state law to ensure equal protection under the law for Native American children. These recommendations include repealing federal and state laws that subject Native American children to different and substandard legal protections than other American children; and repealing laws that allow custody cases involving a child with Native American ancestry that does not live on a reservation to be transferred to tribal court.
Last month both the U.S. House and Senate passed a billed called the Native American Children’s Safety Act that for the first time requires tribes to conduct criminal background checks of all people living in a household before placing a child there for foster care. The Bureau of Indian Affairs is currently considering turning updated guidelines for implementing the Indian Child Welfare Act into formal federal rules that would further entrench the legal discrimination against Native American children.