Lawsuit challenges Native American adoption law

• Lawsuit challenges parts of federal Indian Child Welfare Act
• Native American children are denied equal protection in adoption and foster care%2C it alleges
• The Goldwater Institute filed the class-action suit

Native American children are being deprived of equal protection in foster-care placements and adoptions because federal law puts tribal supremacy ahead of the children's best interests, a class-action lawsuit filed Tuesday alleges.

The suit, filed by the Goldwater Institute in U.S. District Court in Phoenix, challenges portions of the Indian Child Welfare Act as it applies to Native American children living off-reservation.

The suit details the cases of two Arizona families, each of which has sought to adopt a child with Native American heritage only to have their plans stalled by provisions of the 37-year-old federal law.

"Alone among American children, their adoption and foster care placements are determined not in accord with their best interests but by their ethnicity, as a result of a well-intentioned but profoundly flawed and unconstitutional federal law, the Indian Child Welfare Act," the suit states.

DOCUMENT:Lawsuit filed by Goldwater Institute (PDF)

It names as defendants the federal Bureau of Indian Affairs, the U.S. Department of the Interior and the state Department of Child Safety.

Arizona DCS Director Greg McKay is named in the suit because his agency has to follow the provisions of the federal law. The agency said it would not comment until the case is resolved.

In a statement, the Interior Department indicated it will defend the law.

"Congress determined that 'an alarmingly high percentage of (Indian) children' were subjected to 'unwarranted' removal from their homes and that a federal law was needed to protect Indian children," Kevin K. Washburn, assistant secretary for Indian affairs, said in a statement. The law is still needed today, he said, because it protects the best interests of Indian children.

But the Goldwater Institute argues the law does exactly the opposite, and it details the case of two foster families whose plans to adopt a child with Native American ancestry have been thwarted by the federal law.

In one case, a 4-year-old boy who is a member of the Navajo Nation, or is eligible for tribal enrollment, has been living with a foster family for most of his life. His birth mother approves of the child's adoption by an Arizona couple, but under the terms of the Indian Child Welfare Act, the tribe has asserted its right to place the boy with a Navajo family.

Various proposed placements have failed, the suit states, resulting in the child having to "leave the security of his home and visit with strangers solely because he was born with Indian ancestry." This has caused "significant emotional and psychological harm," the suit alleges.

In the other case cited in the lawsuit, a 10-month-old girl has been living with a non-Native American foster family since birth, after DCS removed her from her home because she had been exposed to drugs by her birth mother. A state court severed her parents' rights to the child.

The little girl is eligible for enrollment in the Gila River Indian Community, or may already be a tribal member, the suit states. That blocks the family from adopting her, because the Indian Child Welfare Act gives precedence to the tribe, and the Gila River government has said it will likely ask the state court to transfer the child's case to their tribal court.

Gila River Gov. Stephen Roe Lewis said state and tribal courts work together to look out for a child's best interest, and disputed the notion that federal law puts Native American children in harm's way.

"The suggestion that Indian tribes, including the Gila River Indian Community, do not act in the best interests of the children involved in these cases is untrue and offensive," Lewis said in a statement. "The exact opposite is true."

Lewis argued there have been thousands of "success stories" involving Native American children who have been happily placed with tribal families, and he charged the lawsuit is the latest attack from "the non-Indian adoption industry."

The lawsuit notes that some tribes can accept people for enrollment with little or even no Native American blood. The suit does not extend toNative American children living on reservations, where tribal courts have jurisdiction.

Relief from the federal requirements could provide permanent housing for some of the Native American children in Arizona living in out-of-home placements. As of last September, there were 1,336 such children, the suit states, citing the latest DCS data.

The suit names six counts for relief, including violation of the equal-protections guarantees of the Fifth Amendment to the U.S. Constitution, violation of due-process rights and violation of the First Amendment's guarantee of freedom of association.

The suit asks the court to declare certain provisions of the act unconstitutional, particularly new guidelines issued earlier this year, and to award attorneys' fees to the plaintiffs.

Reach the reporter at maryjo.pitzl@arioznarepublic. com or at 602-444-8963.