Ninth Circuit Upholds Law Denying Equal Protection To Native American Children

Today, the Ninth Circuit Court of Appeals upheld a lower court decision that dismissed a Goldwater Institute challenge to the Indian Child Welfare Act (ICWA).

ICWA is a federal law that subjects Native American children to a separate and substandard set of rules in child custody cases—just on the basis of their race. In these situations, it requires that Indian children—unlike children of all other races—be placed with foster parents who are the same race, even if that means removing the children from existing stable and loving foster homes. In this case, the Goldwater Institute filed a lawsuit on behalf of four Arizona children and the foster (now adoptive) parents, challenging the constitutionality of several provisions of the law. The Ninth Circuit, however, ruled that the underlying problems that the plaintiffs were complaining about had been resolved in the time it took the case to be decided.

“Equal protection under the law is one of this country’s cornerstone principles, but ICWA denies Native American children this protection,” said Goldwater Institute Staff Attorney Adi Dynar, who argued the case before the Ninth Circuit. “Because of ICWA, many Indian children are forced to experience traumatic separations from foster families who love them to satisfy race-based provisions—that is not right and not constitutional. We will continue to challenge this unfair law so that Native American children get the same protections that children of all other races receive.”

“While the best interests of the child come first in most custody cases, Native American children are subject to a different—and less protective—set of rules simply because of their race,” said Timothy Sandefur, vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. “No child should be denied the stability and love they deserve, and the Goldwater Institute will continue to fight for the equal protection of children and adoptive parents harmed under ICWA.”

The Ninth Circuit dismissed the lawsuit under the “mootness” doctrine, a rule that bars federal courts from hearing lawsuits if intervening circumstances make the dispute go away or make it impossible for courts to address the dispute. “In other words, the courts took so long to address this case that the Ninth Circuit decision now essentially says that the case has taken too long, and the case is now a moot point,” said Sandefur. “But justice delayed is justice denied, and the Goldwater Institute is committed to ensuring that Native American children are no longer denied the same protections against abuse and neglect that children of other races already enjoy.”


  1. It was passed in 1978 because of the impact to the children, family and tribe. “25%–35% of all Native children were being removed; of these, 85% were placed outside of their families and communities—even when fit and willing relatives were available.” Most were removed just because they lived in a reservation, and didn’t meet their standards of living. Under President Eisenhower, and others before and after it was a way to disband a tribe. Then take the land for the State to use or sell off at their profit.
    On the topic of race there is only one in our view. That is human. All the rest is culture, religion and what some see as the shade of their skin.

      • I was born and raised on the White Mountain Reservation here in AZ, and my wife on the White Earth in MN. Both of us first generation U.S. citizens in our own Country. Married over 44 years, and after her death I retired back to my White Mountian home.

        • I love the WMAT and their land. I grew up in Tucson. We went up there every summer for up to 2 weeks at a time,m usually along Diamond Creek. Many times I was sitting in the doctor’s office in McNary waiting with all the other kids who actually got to live there because I would usually catch something. (from not washing my hands good!)

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