Judge upholds Indian Child Welfare Act
9th Circuit Court of Appeals unanimously throws out challenge to ICWA claiming the law is racist

PHOENIX — A court has thrown out a bid to void a federal law that challengers claim is racist because it places the desires and rights of Native American tribes over the constitutionally protected best interests of children.

In a unanimous ruling Aug. 6, the 9th Circuit Court of Appeals did not address the contention of the Goldwater Institute, representing Arizona couples adopting Native children, that the law is unfair and illegal.

Instead, the three-judge panel pointed out that all the adoptions had gone through since the lawsuit was first filed in 2015. As such, they concluded, none of the plaintiffs had been harmed and there was nothing left on which the court could rule.

The Aug. 6 ruling drew a slap from attorney Timothy Sandefur.

“Our position is being deprived of equal protection of law on the basis of race is itself an injury, whether it’s a past injury or a forthcoming injury,’’ he told Capitol Media Services. “Even though the adoptions finally came through after all of our clients were forced to jump through these race-based hoops, they still were harmed by having to jump through these race-based hoops.’’

The ruling does not end the multi-year fight.

Sandefur said an appeal is likely. And he said Goldwater Institute is involved in similar lawsuits in Ohio, California and Texas.

The federal law at issue was adopted in 1978 amid concerns that state courts were severing parental rights and approving adoptions of Native-American children who did not live on reservations. The congressional record shows that Congress was concerned that these children were being increasingly adopted by non-Indian families.

That law requires state courts, when placing Native children who do not live on a reservation for adoption, to give preference to a member of the child’s extended family. That is followed by priority by other members of the child’s tribe and, ultimately, other Native families.

There also are provisions that Sandefur say require active efforts to reunite a Native American child with a family, something he said “requires these children to be sent back to the parents that have abused them.’’

According to the Goldwater Institute, all that is racist because it overrules state laws which require courts to give prime consideration to the “best interests of the child,’’ regardless of whether that means placement with a tribal member or someone else.

This lawsuit was filed against the U.S. Bureau of Indian Affairs in 2015 on behalf of two children with some Native American blood at the time were at least temporarily placed with non-Native families where they have lived since they were infants.

It charges the Indian Child Welfare Act gives tribes pretty much unfettered authority to decide placement of children with some native blood, “even those who have never set foot on a reservation.’’

The claim most immediately sought to protect two children from being taken from their current homes. Other children were subsequently added to the claim.

Meanwhile, the Navajo Nation and the Gila River Indian Community interceded on behalf of the federal government to defend the law.

In an extensive ruling last year, U.S. District Court Judge Neil Wake said attorneys for the Goldwater Institute had not proven that any of the children they were claiming to represent had been harmed because of the requirements of the Indian Child Welfare Act. And Wake said if there is a child who may be in danger, that claim can be handled by the state courts that are handling that adoption or foster care proceeding.

But the appellate judges, rather than ruling Aug. 6 on whether Campbell or the Goldwater Institute is correct, decided to sidestep the whole thing as “moot.’’

“Plaintiffs have never suggested they suffered any economic damages,’’ the judges wrote, but only to keep the federal law from being used to interfere with the adoptions. Now, they said, with the adoptions having gone through, there’s nothing left to decide.

“We think that’s wrong because if you’ve been harmed in the past and been forced to undergo something that you would not otherwise have had to undergo as a result of your race, that you’ve been injured and you can sue,’’ Sandefur said.

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