Recently, the Goldwater Institute held a press conference announcing the filing of a class action lawsuit challenging race based separate and unequal treatment regarding foster and adoptive placement of Native American children.

Today’s existing problems can be traced back over one hundred years to the late 19th and early 20th Centuries when many Native American children were removed from reservations and placed in boarding schools or families with no tribal ties. These policies had a profound and deleterious effect on the ability of Native American tribes to maintain both their respective communities and cultures.

In light of this history, the Congress of the United States passed the Indian Child Welfare Act in 1978. The purpose of the act was to provide tribes with jurisdiction over the process of child foster and adoptive placement thereby maintaining the integrity of reservation community and tribal culture.

While the goals of the ICWA are laudable, many unintended consequences have resulted from putting the interests of the tribe over the needs and interests of the child.

The Equal Protection for Indian Children organization offers the story of Laurynn Whiteshield as an example of unintended consequences:

Laurynn spent most of her life in a home where she was loved and protected. From the time she was nine months old, she and her twin sister, Michaela, were raised by Jeanine Kersey-Russell, a Methodist minister and third-generation foster parent in Bismarck, North Dakota.

When the twins were almost three years old, the county sought to make them available for adoption. But Laurynn and Michaela were not ordinary children. They were Indians.

And because they were Indians, their fates hinged on the Indian Child Welfare Act, a federal law passed in 1978 to prevent the breakup of Indian families and to protect tribal interests in child welfare cases.

The Spirit Lake Sioux tribe had shown no interest in the twins while they were in foster care. But once the prospect of adoption was raised, the tribe invoked its powers under ICWA and ordered the children returned to the reservation, where they were placed in the home of their grandfather in May 2013. Thirty-seven days later, Laurynn was dead, thrown down an embankment by her grandfather’s wife, who had a long history of abuse, neglect, endangerment, and abandonment involving her own children.

Native American children are American citizens, and as such deserve the same rights and protections as any other citizen. Their rights and protections cannot be removed based on race.

Some who support the status quo deny that the distinction is based on race, but rather on political affiliation, that being of tribal membership or qualification for membership. This is true in one sense, that it is tribal membership or qualification that allows jurisdiction, but most (though not all) base tribal membership on a defined blood quantum or family lineage - in other words, the race of the child.

The Goldwater filing, authored by Clint Bolick, vice president for litigation, includes six claims for relief.

The first count claims a violation of the equal protection guarantee of the Fifth Amendment. “Government cannot treat the safety and security of children with Indian ancestry less seriously than the safety and security of all other children.” “...all subject Plaintiffs to unequal treatment under the law based solely on the race of the child and the adults involved and are therefore unconstitutional under the equal protection guarantee of the Fifth Amendment.”

The second count claims a violation of the due process guarantee of the Fifth Amendment. “The failure of ICWA as applied by the BIA Guidelines to adequately consider the child’s best interests deprives the class of plaintiff children of liberty without due process of law in violation of the Fifth Amendment.

The third count claims a violation of the substantive due process and equal protection clauses of the Fourteenth Amendment. “Defendant McKay’s compliance with and enforcement of the foster/preadoptive and adoptive placement preferences under state law and ICWA, 25 U.S.C. § 1915(b), (a), New Guidelines at §§ F.1, F.2, F.3, F.4, violate the substantive due process rights of children with Indian ancestry, and those of adults involved in their care 24 of 29 and upbringing who have an existing family-like relationship with the child.”

The fourth count claims that the ICWA exceeds the federal government’s power under the Indian Commerce clause and the Tenth Amendment. “ICWA displaces inherent state jurisdiction over specified child welfare, custody, and adoption proceedings and therefore violates the Tenth Amendment.”

The fifth count claims a violation of the associational freedoms under the First Amendment. “This forced association violates Plaintiffs’ freedom of association, which encompasses the freedom not to associate under the First Amendment.”

The sixth count claims unlawful agency action. “BIA overstepped its authority by extending, in the New Guidelines, the jurisdiction-transfer provision to all child custody proceedings. Such extension, which directly contradicts a Congress-enacted provision, harms children in cases where parental rights have been terminated. It gives tribes the “right to request a transfer,” 80 Fed. Reg. at 10156, C.1(c), in cases where Congress expressly did not give tribes a right to request 123. Such agency action is unlawful, in excess of statutory authority, and not in accordance with law.”