Native American adoptions
PHOENIX — The ability of tribes to intercede in adoption of Native American children not living on the reservation is limited and not absolute, the Arizona Supreme Court ruled Tuesday.
In a unanimous decision the justices rejected arguments by the Gila River Indian Community that Arizona court must transfer such cases to tribal courts. Chief Justice Scott Bales, writing for the court, said while such transfer is permissive, it is not a right.
And in this case, the high court said a the juvenile court judge was correct in deciding to rebuff the tribe’s request.
The lawsuit is part of an ongoing effort by the Goldwater Institute to challenge the federal Indian Child Welfare Act which, in some circumstances, gives tribes purview over what happens to Native American children who do not live on the reservation who are taken from biological parents. Attorneys who are representing non-Native parents who are trying to adopt those children have charged that the law is racist because it has one set of standards for Indian children and another for those who are not.
Those efforts to date have come up short, with a federal judge earlier this year throwing out a separate challenge to that law.
But attorney Avi Dynar who represents the prospective non-Indian adoptive parents in this case, said Tuesday’s ruling is at least a small victory.
“This decision from the Supreme Court is chipping away at one of the important provisions of ICWA,’’ he said. “This is an important decision that puts tribes on notice that they can’t misuse the Indian Child Welfare Act.’’
While saying he was disappointed in the ruling, tribal Gov. Stephen R. Lewis sought to minimize its importance and scope.
In a prepared statement, he noted the decision still preserves the rights of tribes to intercede -- and demand transfer to tribal court -- early in the process, at the point where the state seeks to sever the parental rights of a Native American parent who does not live on the reservation. That occurs before any hearing on who can adopt.
And Lewis said the lesson of Tuesday’s ruling will not be lost on tribes.
“Because of the aggressive involvement of anti-Indian organizations like the Goldwater Institute, Indian tribes have become proactive in seeking transfer to tribal courts early in state dependency cases,’’ he said, long before any adoption hearings in which they may have no say.