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Phoenix—The Goldwater Institute has filed a petition asking the U.S. Supreme Court to take a case that would help decide whether Native American children are entitled to the same rights as all other American children, regardless of their race.
In this case, two Arizona teenagers are being subjected to the Indian Child Welfare Act (ICWA), a federal law that sets different rules for child welfare cases involving Native American children. The teenagers’ father filed a lawsuit to take full custody of them on the grounds that their mother had violated court orders by moving the teenagers out of state. “While a judge would normally decide such a case based on the child’s best interest, ICWA requires that for Indian children, a court must find ‘beyond a reasonable doubt’—based on expert witness testimony—that the child is at severe risk of harm,” explained Adi Dynar, a staff attorney at the Goldwater Institute. “That makes it more difficult to protect children who may be living in dangerous conditions.”
By filing the petition, the Institute is appealing a decision from the Arizona Court of Appeals, which had ruled against the teenagers’ father because he had not done enough to help their mother—a drug abuser—before seeking to terminate her parental rights. ICWA requires “active efforts” to encourage neglectful parents to take responsibility for their children (rather than the “reasonable steps” required for non-Indian children)—even if that means sending children back to abusive parents to be harmed again. The teenagers’ father had, however, engaged in these active efforts for three years before filing the lawsuit and for four years after the lawsuit was filed. Rideout Law, PLLC, an Arizona law firm, litigated the case in the lower courts.
The Goldwater Institute is filing this petition as part of its Equal Protection for Indian Children project, which strives to reform state and federal laws that hurt some of America’s most vulnerable citizens. “For Native American families, ICWA bars one parent from severing the rights of the other parent, even though doing so may clearly be in their children’s best interest. It’s a different standard than all other American children are subjected to—and by filing this cert petition, the Goldwater Institute is hoping to take an important step in guaranteeing Native American children the same protections given to their non-Indian counterparts,” said Timothy Sandefur, vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation, which is currently litigating several ICWA- related cases across the country. “All American children deserve to be treated the same and not be categorized by race.”