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Non-Indian family adoption upheld on technicality

Non-Indian family adoption upheld on technicality

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Scales of Justice

PHOENIX -- Over the objections of a tribe, the state Court of Appeals has allowed a non-Indian family to adopt the child of a Native American mother.

In a unanimous decision, the judges said the trial court correctly considered all the issues, including the interests of the child who had been with the adoptive family as a foster child since a week after she was born.

The ruling was hailed by the Goldwater Institute which has been trying for years to void the Indian Child Welfare Act which generally requires the fate of children with Indian blood to be determined by tribal courts.

"The law creates a separate and unequal system for children of Native American ancestry,'' said Adi Dynan, an attorney for the organization which had interceded in the case.

Conversely, Stephen R. Lewis, governor of the Gila River Indian Community, decried the ruling and groups like the Goldwater Institute which "continue to prey on vulnerable Indian families by attacking the ICWA.''

But a closer examination of the ruling and the facts of this case suggest it is not as broad as either side claims. Instead, it turns on the fact that, for whatever reason, the tribe did not act quickly enough to preserve its claim of jurisdiction over the child.

The case involves a girl, not identified, who was born in 2014. At the time of her birth both she and her biological mother tested positive for amphetamines and opiates.

About a week later the Department of Child Safety placed her with foster parents where she has been ever since.

DCS eventually sought to terminate the parental rights of both the mother, who did not live on the reservation, and the father, who was never identified. As required under federal law, the Gila River community was notified of the move but did not object, resulting in the parents losing their legal rights.

At a subsequent hearing, the trial judge found the foster parents were an adoptive placement meeting all of the child's needs. That included a willingness to honor her heritage, including making arrangements to ensure her continued exposure to tribal culture.

Of note is that the tribe had not provided an alternative placement with a tribal member.

Only later did the tribe seek to transfer the case to tribal court, a move the state judge denied. The tribe appealed, saying that guidelines of the Bureau of Indian Affairs say a change in placement is not a valid reason to deny transfer.

But appellate Judge Lawrence Winthrop, writing for the unanimous three-judge panel, said he reads the Indian Child Welfare Act as not allowing transfer to tribal court after parental rights have been terminated.

Put another way, the court said the tribe waited too long to act.

Winthrop acknowledged the breadth of ICWA, a law Congress enacted in 1978 amid concerns that a large number of Native American children were being placed with non-Indian families. He noted, for example, the law says that any state court proceeding involving the foster placement of termination of parental rights of an Indian child must be transferred to the tribe at the request of the tribe or the parents.

But Winthrop pointed out that mandate is only "where parental rights have not been terminated.'' And in this case, he said, the tribe did not seek to have the case moved until after the trial court had terminated those rights.

In his prepared statement, Lewis does not address the legal underpinnings for the appellate court ruling. Instead he noted that the mother's other three children were placed with tribal families.

"The net effect ... if upheld will be to tear a small child away from her siblings and from her Akimel O'otham heritage,'' he said. "Our community believes this is not at all in the best interets of the child, nor does it present the intent of the Indian Child Welfare Act.''

He said tribal lawyers are weighing legal options.

Dynar, for his part, saw the ruling as a needed victory over the scope of the ICWA, even though the appellate court based its ruling on the statute.

"Federal law forbids racial discrimination in all adoption cases but contains one exception: Indian children,'' he said, saying the ICWA allows a tribe's objections to trump the ability of a state court to determine what placement is in the best interests of the child.

"But it's important to remember: All Indian children are citizens of the United States, entitled to constitutional protections,'' he said.

The Goldwater Institute last year filed its own lawsuit in federal court seeking void provisions of the law.


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