by Timothy Sandefur

The Ninth Circuit Court of Appeals this morning dismissed the Goldwater Institute’s federal lawsuit challenging the constitutionality of the Indian Child Welfare Act (ICWA) under the “mootness doctrine.” That’s a rule that says that if circumstances have changed so that a court can no longer decide a case—perhaps a plaintiff dies, or the house they’re suing over burns down by accident—the court must dismiss it. Here, the court ruled that because the plaintiffs who were seeking to adopt children subject to ICWA were ultimately allowed to do so, their injuries from having to comply with ICWA’s race-based double-standards had been rendered moot. The court did not address any of the constitutional arguments involved, since it held that it had no jurisdiction.

What’s frustrating about the decision is that the delay here was entirely the fault of the courts—and it was only the hard work of Goldwater Institute lawyers in seeking to vindicate constitutional rights that allowed these adoptions to go forward. As a practical matter, therefore, justice delayed is literally justice denied, in this case.

Here’s what happened. In July 2015—more than three years ago—Goldwater Institute lawyers filed this case on behalf of a group of parents who were caring for children who meet ICWA’s racial profile as “Indian.” They wanted to adopt these children and weren’t being allowed to because of the color of their skin. In some cases, state officials were removing children from their siblings and placing them in different homes, at the behest of tribal governments who seek to bar Native American kids from finding safe, loving adoptive homes with families of other races. We argued that this violated the constitutional rights of these kids and parents in a variety of ways.

State, federal, and tribal governments all sought to have the case dismissed—and it was not until March 2017 that the federal trial court finally ruled on their request. In the meantime, Goldwater lawyers representing one of the families was forced to litigate one of the families’ ICWA cases in state court. That case involved a child called A.D., and the tribe was seeking to use its ICWA powers to take her case out of state court and send it to tribal court even after the severance of birth parents’ rights (a necessary step toward adoption). The Arizona Court of Appeals ruled in August 2016 that the tribe had acted too late in making that request—a question Arizona courts had not previously decided—and the Arizona Supreme Court then said it wanted to consider the matter. That was in February 2017, and it didn’t issue its decision until June.

Remarkably, the federal court then used A.D.’s success in state court to prove that she and her parents had not been harmed by ICWA. Tribal officials, it said, “did not seek to enforce [ICWA], but rather it sought a transfer of jurisdiction not authorized by [ICWA].” That meant A.D. and her parents had not been legally harmed by ICWA: “their injury resulted from the [tribe’s] frivolous invocation of [ICWA]….  Their injury is fairly traceable to the [tribe’s] groundless intrusion into their preadoptive and adoptive proceeding beyond the scope of [ICWA], but not to [ICWA] itself.” But, of course, it was not clear that their use of ICWA was “frivolous” until after A.D. and her parents had won their case in the Arizona Supreme Court!

The bottom line is simple: Because the case was delayed so long, things ended up working themselves out—through the patience, fortitude, and struggle of parents who simply want to care for at-risk kids they love. And that means ICWA’s race-based barriers against the adoptions of these kids—all of whom are citizens of the United States entitled to the same legal protections that kids of other races enjoy—aren’t subject to challenge. What Shakespeare called “the law’s delay” then becomes an excuse to postpone justice yet again.

But the reality is that things didn’t “work themselves out.” What happened is that the families in these cases managed to make it through the race-based obstacle course that ICWA imposes—an obstacle course these families would not have been forced to run, had it not been for their race. It’s wrong to turn around and say that because they made it through that obstacle course, they now have no grounds to complain. Had these parents chosen to open their hearts and their homes to children of other races, they wouldn’t have been forced to run that course. That alone is a violation of their rights—and the rights of their children—to be treated equally before the law.

One thing is certain, however: Justice cannot be postponed forever. Our ICWA work continues in Ohio, California, Texas, and other states. The Goldwater Institute is committed to equal justice for Indian children, however long that may take.

Timothy Sandefur is the vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.