‘Moot’ Ruling in Federal Court Upholds Indian Child Welfare Act, Again

Barry Goldwater Voted Yes on ICWA Photo Courtesy @DefendICWA
A demonstrator outside the Goldwater Institute in Phoenix. Photo Courtesy @DefendICWA

The United States Court of Appeals for the Ninth Circuit ruled last Monday that a lawsuit in Arizona challenging the Indian Child Welfare Act was moot, dismissing the challenge without an opinion on the plaintiffs’ assertions that the law is racially biased and illegal.

The Indian Child Welfare Act (ICWA) was passed in 1978 after research found that between 25 and 35 percent of American Indian children were being removed from their homes and adopted by non-Native families, according to Bertram Hirsh, one of the bill’s authors. The law aimed to prioritize tribal authority in the determination of the “best interests of the child.”

The Goldwater Institute of Arizona contends that ICWA violates the constitutional rights of children because it is based on race and requires that American Indian children be treated differently than non-Native children. But so far, the courts have disagreed with that assertion.

In this most recent case, Goldwater attorneys claimed that adoptive families had been harmed by the “race-based hoops” they had to jump through in order to adopt the children in their care. Ultimately those adoptions were finalized in 2015, which was the basis for the ruling by the three-judge panel that the case was moot.

“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 Timothy Sandefur, vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation in a press release. “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.”

Goldwater attorneys will likely appeal the decision, according to Sandefur. The institute has brought nearly a dozen suits challenging ICWA in states across the country, including Washington, California, Ohio and Texas.

According to Hirsh, in order for the Goldwater Institute’s claims to stand, a court would have to throw out about 200 years of legal precedent that has affirmed that tribes are self-governing, and that tribal members are in fact different from the rest of the U.S. population.

“If you are a tribal member then you stand in a political relationship with the U.S., not a racial relationship,” Hirsh said.

The Center for Media and Democracy and other media outlets have reported that the Goldwater Institute is supported by President Trump’s largest donor, the Mercer family, as well as the Koch brothers and the DeVos family. Critics suspect that the institute has no interest in the well-being of children but instead is committed to the cause of undoing tribal sovereignty as it exists in the United States, ultimately paving the way to gain access to mineral rights on tribal lands worth an estimated $1.5 trillion, according to a 2009 estimate.

In a recent article for The Establishment, Rebecca Nagle writes:

“The type of litigation that the Goldwater Institute mounts is extremely expensive. To say that a conservative advocacy organization — that has shown no other interest in either child welfare nor Native rights — is making this investment based solely on the concern for the well-being of Native children is highly skeptical. Many legal experts in Indian Country see the end goal of Goldwater’s attack on ICWA as a back door route to undoing the legal structure that currently protects tribal sovereignty.”

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