3 attorneys general sue feds over race-based adoption law

The U.S. Supreme Court

The intent of the federal Indian Child Welfare Act was to allow Indian children whose parents were unable to care for them to remain within their extended family and tribe whenever possible, enabling them to embrace their own heritage and culture.

But the law is under attack now in a new lawsuit that charges it is discriminatory and puts the welfare of the child below racial considerations.

WND has reported extensively on the issue, including when the U.S. Supreme Court declined to review the case of Lexi Page, who was 7 when her fate was handed over to a tribe that claimed she was 1/64th Indian and removed her from her white foster parents in California. In Minnesota, two parents, from different families, went to court after county officials moved two custody cases to Native American tribal court without the permission of the parents, violating their rights under federal law. In North Dakota, twin sisters were taken from a white foster parent and returned to an abusive family on a reservation, where one of the girls was killed by her grandfather's wife.

The new lawsuit in Texas centers on a boy named Andy whose birth family allowed him to be placed with Charles and Janet, with whom he lived for most of his two years of life.

The couple wanted to adopt him, but the ICWA halted their plans because Andy is part Navajo and part Cherokee.

A Texas judge allowed the tribes to block the adoption because they wanted to send him to "race-matched' strangers in New Mexico.

The case had a happy ending a short time ago when the tribes eventually withdrew their objections and allowed the adoption to proceed.

In the interim, however, attorneys general from Texas, Louisiana and Indiana sued over the constitutionality of the ICWA, and the case is continuing, even though Andy's case is resolved.

A friend-of-the-court brief by the Goldwater Institute asserts the law "forces state officials to return abused and neglected children to the adults who have harmed them, and makes it prohibitively difficult to adopt Native American kids."

Goldwater's report said the children "suffer more than any other demographic in the country from abuse, neglect, and other disadvantages."

"And ICWA’s genetics-based rules only makes things worse. As part of our Equal Protection for Indian Children project, we're participating in this new federal lawsuit to ensure that all American kids, regardless of race, receive the same legal security without regard to race."

Goldwater's filing in court in Fort Worth, Texas, which is hearing the case, said the issue is that ICWA "imposes positive injuries on Indian children by depriving them of 'the right to equal treatment' guaranteed by the Constitution.'

The law, the brief said, subjects cases involving Indian children to differing "burdens of proof from those applicable to non-Indians."

The filing said the consequences of ICWA's "separate and less-protective rules for Indian children treatment are deleterious in the extreme.'

"These children are at greater risk of abuse and neglect, alcoholism, drug abuse, gang membership, and suicide, than any other demographic in the United States."

While the "best interest of the child" routinely is the legal standard on which placement decisions are made, the ICWA prevents it from being applied to Indian children.

"All of this, based on race," Goldwater said, which violates the Commerce Clause and the Tenth Amendment, and forces states "to discriminate in their law of domestic relations when otherwise they would not."

The brief said the federal government "simply lacks authority to command that state governments treat people differently based on their genetics," and the ICWA "compels states to treat abused and neglected children differently – to provide them less protection – based on their race, and to deny them adoption."

The law imposes "racial separatism" on Indian children, the brief said.

Goldwater's Litigation Vice President Timothy Sandefur said ICWA "creates a separate and substandard set of rules for at-risk children, based solely on their race."

"It does this by deeming a child 'Indian' – and therefore subject to ICWA's different rules – based solely on biology, without regard to social or cultural ties to a tribe."

He said Native American children "are citizens of the United States, entitled to the same protections every other child enjoys – particularly the 'best interests of the child' rule. But ICWA overrides that rule."

William Allen of the Coalition for the Protection of Indian Children and Families, who is a critic of the law, said earlier of the case: "I would go so far as to call the legislation a policy of child sacrifice in the interests of the integrity of the Indian tribes, meaning the end has nothing to do with the children. It has everything to do with the tribe. To build tribal integrity, tribal coherence, the law was passed in spite of the best interests of the children."

Disintegrated families

In the California case, Lexi had lived with potential adoptive parents and siblings after her biological family disintegrated because of drugs and crime when she was just months old.

Rusty and Summer Page, who took the girl in and wanted to adopt her, however, lost their effort when California courts ruled she was subject to the ICWA because she was 1/64th Indian. That gave the Choctaw tribe in Oklahoma absolute control over her future, amid protests that their decision wasn't in her best interests. The tribe sent her to live with non-Indian distant relatives.

In the Minnesota case, the Thomas More Society said the parental rights of James Nguyen and Michelle Steinhoff "have been usurped in matters involving each of their minor children because the state of Minnesota is placing Native American tribal law above federal law."

The complaint, in U.S. District Court in Minnesota, explained that although Nguyen's former spouse has documented drug problems, and Steinhoff's former spouse a multitude of criminal convictions, the tribal-member spouses were given custody of their children.

In the North Dakota case, documented by the Goldwater Institute, Laurynn Whiteshield 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 3 years old, the county sought to make them available for adoption. But because they were Indians, their fates hinged on the Indian Child Welfare Act.

The Goldwater Institute said 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."