Law | National

Gila River Indian Community weighs options after losing Indian Child Welfare Act case

Monday, August 15, 2016

Young members of the Gila River Indian Community participate in Native American Recognition Day, hosted by the Arizona Diamondbacks on June 10, 2016. Photo from Facebook

The Gila River Indian Community waited too long to assert jurisdiction in an Indian Child Welfare Act case, an Arizona court ruled last week.

The tribe became involved in the proceedings not long after a girl, identified as A.D., was born in 2014. But the tribe didn't file a motion to transfer the case to its court system until the child's parental rights were terminated in 2015.

The delay cost the tribe its rights under a specific provision of ICWA, the Arizona Court of Appeals determined in what it said was the first case of its kind in the state. Judge Lawrence F. Winthrop authored the unanimous decision, dated August 11.

"By not moving to transfer jurisdiction before termination of the biological parents’ rights, the community effectively waived its right to seek transfer of jurisdiction under 25 U.S.C. § 1911(b)," Winthrop wrote in the 14-page ruling, referring to the provision of ICWA at issue.

The decision means the girl will remain in the care of a non-Indian couple that wants to adopt her. The tribe is now determining its next move in the case, Gov. Stephen R. Lewis said in a statement.

“The net effect of today’s appellate decision, if upheld, will be to tear a small child away from her siblings and from her Akimel O’otham heritage,” Lewis said in the statement. “Our community believes this is not at all in the best interest of the child, nor does it represent the intent of the Indian Child Welfare Act."

Although the proceeding only involved one child, it's being closely watched because the non-Indian foster couple is being represented by the Goldwater Institute. The conservative-leaning organization, which is based in Arizona, has launched a public relations and legal campaign aimed at undermining and even invalidating the landmark Indian Child Welfare Act.

The girl, in fact, is named as the lead plaintiff in a A.D. v. Washburn, a class action lawsuit that claims the landmark 1978 law violates the U.S. Constitution because it applies to children of a certain "race."

"Nationally, Native American children continue to be removed from their birth homes by state authorities at much higher rates than non-Native children. At the same time, the non-Indian adoption industry and groups like the Goldwater Institute continue to prey on vulnerable Indian families by attacking ICWA," Lewis countered in his statement.

In light of the high stakes, the Salt River Pima-Maricopa Indian Community, the Cherokee Nation and the Native American Bar Association of Arizona submitted a friend of the court brief in the Arizona case.

The federal case has drawn even more interest -- a slew tribes, states and other parties have filed briefs. Documents are available on Turtle Talk.

Arizona Court of Appeals Decision:
Gila River Indian Community v. Department of Child Safety, Sarah H., Jeremy H., A.D. (August 11, 2016)

Bureau of Indian Affairs Final Rule for Indian Child Welfare Act:
Final Rule: Indian Child Welfare Act (ICWA) Proceedings | Final Rule: Indian Child Welfare Act (ICWA) Frequently Asked Questions | Dear Tribal Leader Letter | Dear State Governor Letter

Federal Register Notices for Indian Child Welfare Act Rule:
Indian Child Welfare Act Proceedings (June 14, 2016)
Regulations for State Courts and Agencies in Indian Child Custody Proceedings (March 30, 2015)
Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (February 25, 2015)