Ninth Circuit dismisses lawsuit challenging constitutionality of law that denies equal protection to Native American children

Posted on August 6, 2018

Phoenix—Today, the Ninth Circuit Court of Appeals upheld a lower court decision that dismissed a Goldwater Institute challenge to the Indian Child Welfare Act (ICWA).

ICWA is a federal law that subjects Native American children to a separate and substandard set of rules in child custody cases—just on the basis of their race. In these situations, it requires that Indian children—unlike children of all other races—be placed with foster parents who are the same race, even if that means removing the children from existing stable and loving foster homes. In this case, the Goldwater Institute filed a lawsuit on behalf of four Arizona children and the foster (now adoptive) parents, challenging the constitutionality of several provisions of the law. The Ninth Circuit, however, ruled that the underlying problems that the plaintiffs were complaining about had been resolved in the time it took the case to be decided.

“Equal protection under the law is one of this country’s cornerstone principles, but ICWA denies Native American children this protection,” said Goldwater Institute Staff Attorney Adi Dynar, who argued the case before the Ninth Circuit. “Because of ICWA, many Indian children are forced to experience traumatic separations from foster families who love them to satisfy race-based provisions—that is not right and not constitutional. We will continue to challenge this unfair law so that Native American children get the same protections that children of all other races receive.”

“While the best interests of the child come first in most custody cases, Native American children are subject to a different—and less protective—set of rules simply because of their race,” said Timothy Sandefur, vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. “No child should be denied the stability and love they deserve, and the Goldwater Institute will continue to fight for the equal protection of children and adoptive parents harmed under ICWA.”

The Ninth Circuit dismissed the lawsuit under the “mootness” doctrine, a rule that bars federal courts from hearing lawsuits if intervening circumstances make the dispute go away or make it impossible for courts to address the dispute. “In other words, the courts took so long to address this case that the Ninth Circuit decision now essentially says that the case has taken too long, and the case is now a moot point,” said Sandefur. “But justice delayed is justice denied, and the Goldwater Institute is committed to ensuring that Native American children are no longer denied the same protections against abuse and neglect that children of other races already enjoy.”

Read more about Carter v. Washburn here, and learn more about the Goldwater Institute’s Equal Protection for Indian Children project here.

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About the Goldwater Institute

The Goldwater Institute drives results by working daily in courts, legislatures and communities to defend and strengthen the freedom guaranteed to all Americans in the constitutions of the United States and all 50 states. With the blessing of its namesake, the Goldwater Institute opened in 1988. Its early years focused on defending liberty in Barry Goldwater’s home state of Arizona. Today, the Goldwater Institute is a national leader for constitutionally limited government respected by the left and right for its adherence to principle and real world impact. No less a liberal icon than the New York Times calls the Goldwater Institute a “watchdog for conservative ideals” that plays an “outsize role” in American political life.