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Goldwater Institute Addresses Supreme Court Review of Indian Child Welfare Law

March 19, 2022

By Corinne Murdock |

The Supreme Court (SCOTUS) announced earlier this month that it would consider the constitutionality of the Indian Child Welfare Act (ICWA), federal law that determines when states can rescue abused or neglected Indian children, as well as foster rules. This law applies to tribal children and those eligible to live on a tribe but living off of a reservation. Essentially, ICWA does all it can to keep Native American children within their own families or with other Native Americans, and requires state officials to apply a higher degree of scrutiny over abuse to determine whether abuse exists. While other children’s cases need only present “clear and convincing evidence” of abuse, Native American children’s cases would need to present “without a reasonable doubt.” ICWA was enacted to prevent the government from taking Native American children from their families.

Phoenix’s nationally-acclaimed public policy research and litigation organization, the Goldwater Institute, requested SCOTUS to review ICWA; they’ve challenged the federal law for years. In light of the SCOTUS announcement, Goldwater Institute Vice President of Litigation Timothy Sandefur discussed ICWA on the “Andy Caldwell Show.”

Sandefur described the law as unconstitutional and depriving children of fair treatment. He noted that Native American children are at greater risk for molestation, abuse, gang membership, and suicide, arguing that already-vulnerable children were only hurt more by ICWA.

“The rules that [ICWA] sets for child protection are actually less protective for a child than the laws that apply for every other racial group,” said Sandefur.

The case SCOTUS will consider, Brackeen v. Haaland, comes from a culmination of different cases brought by several parents desiring to adopt Native American children but were denied due to not being Native American themselves. 

Sandefur described one case that the Goldwater Institute worked on, in which a mother wanted to terminate the rights of her abusive husband so that her new husband could legally adopt her son. If the child had been any other race, the rights could’ve been terminated. However, ICWA applied. Under ICWA, it was “prohibitively difficult” to terminate an abusive parent’s right, even in the case of a mother requesting that action. 

In a press release, Sandefur also noted that ICWA also violates the separation of the federal and state governments by requiring states to enforce federal law and interpret their own laws differently. 

Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.

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