by Timothy Sandefur
March 14, 2018
C.J. Jr. was born in Ohio, and ordinarily you wouldn’t be able to distinguish him from any other Ohio child. His father lives in Ohio, as did his mother, until her recent death. His foster parents live in Ohio, and he’s lived with them for most of his life. So you might think that he’d stay there, and maybe be adopted by his foster parents, as often happens.
But there’s just one problem: C.J. Jr. is—based solely on the DNA in his blood—eligible for membership in the Gila River Indian Community. And that means that his case is governed by the Indian Child Welfare Act (ICWA), a federal law that overrides state child welfare laws and imposes race-based rules that make it harder to protect Native American kids from abuse or neglect or to find them the safe, loving adoptive homes that they need. And it gets worse: under ICWA, children can be uprooted from their foster families and exiled to other states—as happened in the recent case of “Lexi” and almost happened in the recent A.L.M. case—to live with strangers, based solely on their race.
C.J. Jr. has no political affiliation with the tribe. How could he? He’s only five years old (he will be six in July). And he doesn’t have any cultural affiliation with a tribe, or speak a tribal language, and he’s never been to the Gila River reservation Arizona. He lives almost two thousand miles away from Arizona, and has never visited the state. But thanks to his genes, officials with the Gila River tribe decided they wanted C.J. Jr.—so they got a court order from their own tribal court ordering that C.J. Jr. be put on a plane and sent to Arizona to live on the reservation with strangers he’s never met, simply because he’s of the same race. Never mind that the tribal court had no jurisdiction—it claimed jurisdiction based on his genetics—and invoked its ICWA powers to command state officials to comply.
Joined by his court-appointed lawyer and representatives from the Ohio Attorney General’s office, we went to court to defend this child against this disgraceful example of racial discrimination. And yesterday, the Ohio Court of Appeals ruled in favor of C.J. Jr., and rejected the tribe’s shocking abuse of authority. “The tribal court order,” said the Ohio judges, “was procured without notice to all the parties, and purports to exercise personal jurisdiction over C.J., Jr.’s parents as well as C.J., Jr., who is not and never has been domiciled on, resided in, or even visited the reservation.” But that’s unconstitutional, because “The same due process standards that govern state court[s]…also apply to tribal courts,” and the long-standing rule of “minimum contacts” forbids any court from deciding a case where the parties have no connection to that court. Here, “neither C.J. Jr., nor his birth parents, nor the foster parents have the minimum contacts necessary for the tribal court to exercise personal jurisdiction over them consistent with due process of law.”
Just as astoundingly, the Court of Appeals found that the effort to ship this little child to a state he’d never even been to “was done without any analysis of C.J., Jr.’s best interests.” But, in fact, tribal officials and the Bureau of Indian Affairs have taken the position repeatedly that in ICWA cases, courts are not supposed to consider the child’s best interests. Others, including the California Court of Appeals, have held that while there’s one “best interests” rule for white children, there’s a different “best interests” rule for Indian children—literally, “separate but equal.”
The court ended its opinion with an observation that ought to be common sense: “Whether the trauma that might result from removing C.J., Jr. from the only home he has known since he was two years old should outweigh the interest of GRIC in having him transported across the country and raised as part of the GRIC must be determined with all the wisdom, compassion, and experience of the juvenile court.”
We’re proud of our Equal Protection for Indian Children project and the progress we’ve made in challenging the race-based deprivation of protection that is imposed on kids through ICWA. And we won’t rest until all of these children receive the same legal protections that their peers of other races receive.
Timothy Sandefur is Vice President for Litigation at the Goldwater Institute and holds the Duncan Chair in Constitutional Government.