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Legal Group Says Indian Family Law Is Unconstitutional

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New York (August 28, 2017, 8:45 PM EDT) — A California-based legal foundation has urged the U.S. Supreme Court to hear a challenge to the Indian Child Welfare Act, claiming the law unconstitutionally discriminates on the basis of race and that Congress doesn’t have authority over private custodial battles involving Indian children.
The Goldwater Institute filed a July 17 petition with the high court on behalf of two Colorado River Indian Tribes children whose father wants to terminate the parental rights of their mother, seeking to overturn a January decision from the Arizona Court of Appeals that held the ICWA — which sets requirements to end the rights of parents of Indian children that go beyond those in state law — applied to their divorced parents’ battle and didn’t violate the U.S. Constitution’s equal protection provisions.

The Pacific Legal Foundation backed the institute’s petition in an Aug. 18 brief, arguing that the justices should clarify that state courts including the Arizona appellate court have wrongly applied the ICWA to private custodial proceedings in state court that are “beyond the reach of Congress.”

Congress’ power under the Constitution’s Indian Commerce Clause “is not plenary,” and the ICWA “is therefore constitutional only if the proceedings in which it applies can be viewed” can be considered commerce with tribes, which isn’t true of the private battle between the parents of two Indian children in the current case, the foundation said.

According to the petition by the children — members of the Colorado River Indian Tribes identified as S.S. and S.S. — the ICWA only applies when public or private agencies place Indian children in non-Indian homes, and “that concern is absent in a private action for termination of parental rights, which is a private dispute between birth parents, involving no government entity.”

While the Arizona court ruled that the ICWA’s provisions are based on the political status of Indians and tribal sovereignty, the Goldwater Institute claimed that the law penalized the children and their father for trying to protect them by seeking to terminate the mother’s parental rights.

The children’s father, identified as Garrett S., had sought to terminate the parental rights of the mother, identified as Stephanie H., following their 2005 divorce, alleging abandonment and neglect by the mother.

A private termination of parental rights, or TPR, dispute is usually addressed under state law, according to the petition, but an Arizona court found that the federal ICWA applied to the proceeding and that its requirements for terminating the mother’s rights hadn’t been met.

The Arizona Court of Appeals affirmed the lower court’s ruling, saying that ICWA’s “plain language does not limit its scope to proceedings brought by state-licensed or public agencies” and that the ICWA isn’t race-based and its requirements are “rationally related to the federal government’s desire to protect the integrity of Indian families and tribes.”

Those requirements include making “active efforts” to keep the family together, showing those efforts weren’t successful and showing that letting the mother continue to have custody was likely to cause “serious emotional or physical damage” to the children, according to the opinion.

CRIT said in a July 20 statement that the petition is “about Goldwater’s agenda” and “not about these kids’ welfare or even parental rights,” adding that the children are teenagers and would likely be older than 18 before the Supreme Court would potentially render a decision.

The ICWA “is not a race-based statute, which has been repeatedly recognized by the courts,” and the tribe believes the law “must be strictly followed in every case to ensure the well-being of our children,” according to the statement.

In its amicus brief, the Pacific Legal Foundation argued that the ICWA “deprives American citizens of the equal protection of state custodial and protective services proceedings based solely on their race” and that Indian children “are not afforded the ‘best interests of the child’ standard that is available to all non-Indian children.”

Congress has asserted plenary power over Native American affairs under the Indian Commerce Clause, but that clause “does not support federal intrusion into state court standards for private custodial proceedings, and there is no other constitutional authority to support such an intrusion,” the group said.

Timothy Sandefur, vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation, said in a statement Monday that the Pacific Legal Foundation brief “very ably points out some of the problems with the Indian Child Welfare Act — a law that exceeds the power of Congress and subjects vulnerable children to different and less protective laws, based solely on their race.”

Counsel for CRIT declined to comment on the case Monday.

The petitioners are represented by Timothy Sandefur and Aditya Dynar of Goldwater Institute, Scharf-Norton Center For Constitutional Litigation and Bradlee Rideout, Wendy Marcus and Steven Dorr of Eckhardt Rideout Law PLLC.

The Colorado River Indian Tribes is represented by Deputy Attorneys General Elizabeth Lorina-Mills and LeeAnne Kane and Rob Roy Smith and Adam Charnes of Kilpatrick Townsend & Stockton LLP.

The Pacific Legal Foundation is represented by Joshua P. Thompson, Oliver J. Tunford and Jeremy Talcott.

The case is S.S. and S.S. v. The Colorado River Indian Tribes et al., case number 17-95, in the Supreme Court of the United States.

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