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Arizona think tank challenges constitutionality of federal Indian Child Welfare Act

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FLAGSTAFF, Arizona — A right-leaning think tank has brought what it believes is the most comprehensive challenge to a law that gives preference to American Indian families in adoptions of Indian children.

In a lawsuit announced Tuesday, the Phoenix-based Goldwater Institute says that the Indian Child Welfare Act of 1978 doesn't consider what's in the best interest of Indian children and discriminates based on race. Clint Bolick, the institute's vice president of litigation, said the well-intentioned 1978 law has outlived its purpose and is unconstitutional.

"Our goal here is to end the separate and unequal treatment of children with Indian blood," he said.

Congress passed the law after finding that high numbers of Indian children were removed from their homes by private and public agencies and placed with non-Indian caretakers. The law gives the child's tribe and family a say in decisions affecting the child.

U.S. Bureau of Indian Affairs Secretary Kevin Washburn said Tuesday that the agency, which is named as a defendant, will fight to uphold the law. "This law has been an important feature of the legal landscape for many years now, and we firmly believe that the protection of the best interests of Indian children continues to be important today," he said in a statement.

Another defendant, the Arizona Department of Child Safety, declined to comment.

One of the most well-known cases involving the Indian Child Welfare Act was that of Baby Veronica. Her father, a member of the Cherokee Nation, cited the law in seeking custody of her from a non-Indian family who had adopted her. The U.S. Supreme Court in 2013 ruled that the Indian Child Welfare Act didn't apply because the father, Dusten Brown, had been absent from Veronica's life.

The Goldwater Institute's lawsuit was filed in U.S. District Court in Arizona on behalf of two married couples who are foster parents to one child with family ties to the Gila River Indian Community and the other with ties to the Navajo Nation. The foster parents are seeking to adopt them. The lawsuit says those adoptions likely would be cleared under race-neutral state laws but instead have been delayed by the Indian Child Welfare Act.

Bolick said the federal law also makes it harder to remove Indian children from abusive homes.

Messages left with the Navajo Nation's Department of Justice weren't immediately returned. Gila River Gov. Stephen Roe Lewis said it's offensive to suggest tribes don't have the children's best interests in mind. The Indian Child Welfare Act is necessary based on the status of tribes as sovereign nations, he said.

"While we all understand that Arizona's child welfare system is in need of change, ICWA is one area that works," Lewis said in a statement. "And, if change is needed, filing what is apparently intended to be a high-profile lawsuit, which tracks the interests of the non-Indian adoption industry, is not the solution."

The lawsuit seeks to declare provisions of the Indian Child Welfare Act unconstitutional and to include as plaintiffs other American Indian children in Arizona who do not live on tribal land. It would not affect cases with children or parents who live on reservations that are within the jurisdiction of tribal courts.

Advocates of the Indian Child Welfare Act say it gives Indian children the best chance to thrive in their culture and maintain connections to their homeland and traditions. Leland Morrill, who is Navajo and Santo Domingo, was adopted by a non-Indian family in 1971 when he was 4 years old. His mother died as the result of a car wreck when he was 2, and he spent 2 years in the foster care system. His father was serving in the military during the Vietnam War.

Morrill said many of the communication problems with his adoptive family stemmed from identity issues. He later reunited with American Indian family members and is scheduled to meet his biological father next month. He said that even though he's become more familiar with pow wows and other American Indian gatherings, he feels lost.

"I still feel that there are certain protocols that I don't get that should be innate," said Morrill, of Los Angeles.

Morrill said tribes should work to increase the number of American Indian families who want to take children into foster care or adopt them.

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