by Adi Dynar
January 15, 2019

What do an Alabama bus, the East Louisiana Railway Company, and a federal law affecting Native American children have in common? Read on.

Yesterday, we asked the U.S. Supreme Court to take a civil rights case with implications not unlike those of America’s past. It involves four children and the parents who adopted them, all of whom were subject to the Indian Child Welfare Act (ICWA). ICWA is the federal law that creates a separate system of rules and procedures to decide child custody cases based on their race, color, or national origin.

The children and parents had to jump through additional hoops to earn legal recognition for their families—hoops they would not have had to jump through if the children had been white, black, Asian, or Hispanic. ICWA’s separate set of rules only applies to Indian children. Our clients sued to challenge these discriminatory rules, but the Ninth Circuit threw the case out on the grounds that because our clients’ adoption cases had all reached their conclusions, the case was legally “moot.”

We’ve asked the Supreme Court to decide a fairly technical question, but it has wide-ranging implications. Here’s why.

By the time the case reached the Ninth Circuit—about three-and-a-half years after it began in federal trial court—all of the plaintiffs’ adoptions had been finalized by state courts. As a result, the Ninth Circuit said that they could not seek vindication of their rights against the discriminatory system they were forced to comply with in order to finalize those adoptions.

But that’s simply not true. Consider one of the most iconic civil rights advocates in recent history: Rosa Parks. She was prosecuted for refusing to give up her seat in the “white” section of a Montgomery, Alabama, bus. As a matter of principle she and others in Montgomery boycotted the public transit system. Aurelia Browder and other contemporaries of Parks’ who had suffered similar discrimination sued.

But in the 1950s, federal courts only had authority to prevent future discrimination. This meant that the bus boycotters couldn’t ask courts to rule that the bus company had violated their rights in the past. Although they won a Supreme Court ruling in 1956 that bus segregation was unconstitutional, the courts made clear that plaintiffs like Browder who had suffered discrimination needed to allege they will suffer discrimination in the future in order to keep their cases alive.

That changed when Congress passed what is now Title VI of the Civil Rights Act of 1964. It authorized federal courts to address past discrimination. This has been the rule for more than five decades. And it makes sense. Under pre-Title VI law, parents who were discriminated against on the basis of race, color, or national origin in an adoption proceeding would have had to allege that they will seek foster or adoptive placement of a child of a specific race, color, or national origin at some point in the future. Meanwhile, Indian children would have had no grounds to sue over that, once a court finalized its discriminatory decision. Instead, they would have had to allege that they will seek to be adopted again in the future. That is absurd—and, since the 1960s, it hasn’t been legal.

In our lawsuit, the Ninth Circuit ruled that because the parents were able to adopt the children after having gone through a discriminatory procedure, there was nothing more the court could do for them and thus the case was moot. That decision dials back the clock more than 50 years and denies plaintiffs like these children and parents their right not to be discriminated against on the basis of race, color, or national origin.

In fact, the Ninth Circuit’s ruling is like saying Homer Plessy couldn’t sue over being forced to ride in a segregated train car on the East Louisiana Railway because, after all, he did get to ride it. Obviously, that wasn’t the law even back in 1896, because in Plessy v. Ferguson, the Supreme Court assumed the case remained alive and ruled on the merits, even though it reached the wrong result for the wrong reasons. Getting to ride the segregated coach of the East Louisiana Railway company, or getting to take the Montgomery bus—or being subjected to ICWA—cannot make their cases “moot.”

This is why our case’s importance goes beyond ICWA. And at the end of the day, at least at this point, it is not solely an ICWA case. It involves bedrock principles of federal court jurisdiction, and however resolved, it will affect countless individuals and government officials. We have urged the Supreme Court to take this case because it will be a pathmarker informing litigants on how to effectively plead, or seek dismissal of, Title VI cases.

You can read more about the Goldwater Institute’s work to ensure equal protection for Native American children here.

Adi Dynar is a Staff Attorney at the Goldwater Institute.