A non-Native American couple can adopt a Native American child,the state Supreme Court decided Tuesday in a ruling that clarifies the limits of a federal law meant to protect the rights of tribes to keep children in tribal communities.
In a unanimous opinion, the court agreed with arguments from the couple’s attorney that the federal Indian Child Welfare Act could not block the adoption in Maricopa County Juvenile Court.
The Gila River Indian Community, to which the child in question belonged, had argued the federal law gave them the right to intervene and get the case transferred to tribal court.
Adi Dynar, an attorney who represented the parents, said the ruling helps define the reach of the federal law.
“It puts tribes on notice they won’t be able to use ICWA,” said Dynar, who is a staff attorney at the Goldwater Institute.
The federal law was created nearly four decades ago in the wake of the removal of a large number of American Indian children from their homes. They were placed in foster care or group homes and separated from their tribal roots.
The Goldwater Institute has challenged the use of the law in several cases, including a class-action suit pending before the Ninth U.S. Circuit Court of Appeals.
Tuesday’s ruling affects the narrower issue of when the law can be invoked to stop the placement of a child with a non-Native family.In this case, the Gila River Community moved too late to intervene, the high court decided.
Associate Justice Clint Bolick, who previously directed the Goldwater Institute’s litigation arm, recused himself from the case.
If the community wanted the case before a tribal court, it should have acted before the parental rights of the child’s birth mother were severed, Dynar said.
There are other instances where the federal law can force a transfer of a child-welfare case to tribal court, Dynar said, such as when there is a motion to transfer parental rights.
Tuesday’s ruling clears the way for the couple, identified in court documents only as Sarah and Jeremy H., to proceed with adopting the girl known as “A.D.” The couple has had custody of the child as foster parents since she was five days old. She turns three in August.
The child was removed from her mother days after birth because of substance-abuse issues which caused the child to be born exposed to substances.
The couple’s full names are not disclosed to protect the child’s identity.
Attorneys for the Gila River Community did not return phone calls seeking comment.
In a statement, the Goldwater Institute’s vice president for litigation said the federal law has strayed from its initial purpose.
“The act was passed with good intentions, but it went too far in the other direction,” said Timothy Sandefur, vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
The institute is pursuing other challenges to ICWA, including the case before the circuit court. It challenges six provisions of the Indian Child Welfare Act.
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