September 9, 2020
By Timothy Sandefur

An Ohio child of Native American ancestry will be allowed to remain with his family, instead of being taken away and sent to live two thousand miles away with strangers on an Indian reservation, thanks to a decision by an Ohio judge that has now become final. That decision puts an end to more than five years of litigation by the Goldwater Institute, the Attorney General, the Pacific Legal Foundation, and other allies.

The case involved a little boy known as C.J., now 8 years old, who was born in Ohio and lived there his entire life with a foster family after his birth parents proved unable to care for him. C.J. is happy there; his foster parents provide him with the stable, loving home he needs. Yet officials with the Gila River Indian Community (GRIC) in Arizona determined that C.J. is an “Indian child” under the federal Indian Child Welfare Act (ICWA)—which imposes a set of race-based restrictions on efforts to protect children of Native ancestry—and sought to seize him from that home and send him to live on the GRIC reservation, which he had never even visited, with people he had never met.

After a tribal court asserted authority to decide C.J.’s case—despite his having never been near the tribe’s land—the child’s state-appointed guardian ad litem objected, arguing that taking C.J. from his home would not be in his best interest. ICWA, however, overrides the “best interests” rule that applies to most children, and imposes a different rule for children who are deemed “Indian”—a classification based exclusively on the child’s biological ancestry. When an Ohio trial judge agreed to send C.J. to live on the Arizona reservation, we represented C.J.’s guardian ad litem in appealing that case to the Ohio Court of Appeals. We argued that it violated the constitutional rule of equal treatment to ignore C.J.’s best interests and to take away his rights based on his racial ancestry—and that the tribal court had no authority to rule on his case in the first place.

The appellate court agreed with us, sending the case back to the trial judge for reconsideration. It emphasized the need to consider what’s in C.J.’s specific best interests. That’s important because there’s a difference in how the best interest rule applies to Indian kids. Ordinarily, that rule requires a court to do what’s best for the specific child in his or her particular circumstances—taking into account his or her needs, the circumstances of his family, and so forth. But several state courts have said that ICWA creates two different best interest rules: the “Anglo” best interest rule, which prioritizes the child’s individual needs—and an “Indian” version, which subordinates the needs of the child to the desires of tribal governments. In the “Indian best interest” test, the child’s needs are only one of a “constellation of factors” (as the California courts put it) in deciding whether to protect the child against abuse or neglect.

Fortunately, the Ohio Court of Appeals ordered the trial court to consider C.J.’s individual best interests, and the trial judge concluded that the evidence clearly showed it was in C.J.’s best interest to stay with his foster parents. That decision—which, unfortunately, we are not permitted to share online—started a clock for GRIC to appeal, and that clock has now run out, meaning that the case has come to an end.

That’s great news. But other Indian children are not as fortunate. They’re often subjected to the less protective “Indian” version of the best interest rule which does not prioritize their individual needs and circumstances. Obviously, having two different rules for kids of different ancestry—rules that go by the same name but apply differently based on the child’s race—is literally what’s known as “separate but equal.” It’s shameful that federal law forces state courts to disregard the individual needs of at-risk children who fit within a racially defined category—but that’s just how ICWA works.

We’re glad that in this case, the court decided to prioritize C.J.’s individual needs. But shouldn’t that be the rule for all kids?

We appreciate the assistance of AFN member Chris Holocek and our friends at the Pacific Legal Foundation for helping us to defend C.J.’s constitutional right to equal treatment.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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