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Suit Challenges Law Keeping Native American Children in Abusive Homes

Calls portions of the Indian Child Welfare Act unconstitutional

at Red Cloud Elementary School on the Pine Ridge Indian Reservation in South Dakota
Students at at Red Cloud Elementary School on the Pine Ridge Indian Reservation in South Dakota / AP
• July 8, 2015 2:52 pm

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A class suit filed on Tuesday challenges core provisions of the federal Indian Child Welfare Act, and claims that abused, neglected, or abandoned Native American children are discriminated against based on their race and are being forced to remain in abusive homes.

The Goldwater Institute filed the lawsuit to give equal protection to Native American children, who are required by the decades-old law to be placed with other Native American families even, the suit alleges, when it is not in the their best interest. The law is forcing Indian children to remain in dangerous and abusive homes, according to Goldwater.

"When an abused child is removed from his home and placed in foster care or made available for adoption, judges are required to make a decision about where he will live based on his best interest. Except for Native American children," said Darcy Olsen, president of the Goldwater Institute, in a prepared statement. "Courts are bound by federal law to disregard a Native American child’s best interest and place him in a home with other Native Americans, even if it is not in his best interest."

"We want federal and state laws to be changed to give abused, neglected or abandoned Native American children the same protections that are given to all other American children: the right to be placed in a safe home based on their best interests, not based on their race," said Olsen.

The lawsuit challenges the constitutionality of the 1978 law, arguing that it makes the best interest of an Indian child subordinate to other concerns that do not affect decisions related to foster or adoption placements for children of other races. Native American children are, according to the suit, currently being denied equal protection under the law.

Since there is no minimum blood quantum or requirement that a child or his parents have any significant ties to the Native American community before the law applies, a child who has never lived on Native American land can be subject to the law’s requirements.

"While it is important to protect the culture and heritage of Native American tribes, the desires of a tribe should never trump the best interests of a child," said Olsen.

Many Native American children, according to Goldwater Institute, have been placed with known sex offenders and have been physically and sexually abused. Some have died after being placed in homes in accordance with the law’s provisions.

In an investigative report released Tuesday, Goldwater’s Mark Flatten documented several cases of Native American children whose best interests, he argues, were not well served by the the current law.

"Laurynn Whiteshied was a happy, playful child who loved being with her family, ‘a family she knew loved her’. At least that’s what it says in her obituary," Flatten wrote. She died 37 days after she and her twin sister were ordered to be returned to the reservation from their foster home. Her grandfather’s wife, with a long history of abuse, endangerment and abandonment of her own children, killed the three-year-old.

Goldwater has proposed several reforms to the current law. These include repealing the "unconstitutional provisions of the Indian Child Welfare Act that create a system of legally sanctioned, race-based segregation" and amending the act to "allow states to apply uniform, individualized, race-neutral standards that protect the best interests and welfare of all children in child welfare and child custody proceedings, regardless of their race."

Statistics compiled by the Center for Social Research at the University of California, Berkeley, show that Native American children are more likely to be abused after being reunited with their parents than children of any other race.

Goldwater filed the suit on behalf of all off-reservation Arizona-resident children with Indian ancestry in child custody proceedings and the foster, pre-adoptive, or prospective adoptive parents of these children. This case will not affect current or future cases that involve children or parents living on a reservation where a tribal court has jurisdiction. Instead, it seeks to change the law so that state courts and agencies treat Native American children t.

"When children have already endured the trauma of abuse or neglect, it is both grossly immoral and unconstitutional to give them fewer protections under the law based on their race," said Clint Bolick, vice president of litigation at the Goldwater Institute.

Published under: Lawsuit, Native American