Conservative group claims victory in Indian Child Welfare Act case

Thursday, March 15, 2018

The conservative Goldwater Institute is claiming victory in an Indian Child Welfare Act case in Ohio.

On Tuesday, the 10th Appellate District blocked the transfer of the case to the Gila River Indian Community. A "parental objection" prevents the tribe from deciding the fate of a five-year-old boy, a panel of judges determined.

"An objection by either parent to transfer the case to the tribal court is an absolute bar to the transfer," Judge David B. Tyack wrote for the court. "Such an objection is considered an absolute veto."

The objection came from the boy's non-Indian mother. Though she passed away while the case was underway, her rights must be respected, another judge wrote.

"Even though the mother has died during the pendency of this appeal, her death does not operate as a retroactive withdrawal of her timely objection to the transfer," Judge Betsy Luper Schuster wrote in a separate opinion.

The tribe has been wanting to place the boy, identified in records as C.J. Jr., with relatives in Arizona. The father is a Gila River citizen.

But the Goldwater Institute, which is based in Arizona, claims C.J. has been treated differently merely because of his "race."

“Because of the court’s decision today, C.J. Jr. will get to stay with his foster parents as he wished," attorney Aditya Dynar said in a press release. "This is a major victory for the rights of children like C.J. Jr., whose best interests should mean as much as they do for all other children in Ohio and across the country.”

The case is just one of several ICWA disputes that Goldwater Institute has been pursuing in the state and federal courts. The group has repeatedly attacked the law as unconstitutional, though no rulings have been issued to that effect. The U.S. Supreme Court has rebuffed the group's appeals as well, with a petition denied as recently as February.

Yet the efforts are drawing attention. Ohio Attorney General Mike DeWine (R) submitted a brief in C.J.'s case, claiming that ICWA "intrudes on state authority" and should be considered unlawful.

Despite the sparring, C.J.'s placement has yet to be determined. The case has been remanded to juvenile court, with a decision to be made "after a full evidentiary hearing taking into account the best interests of C.J., Jr., any competing interests of the other parties to this litigation, and the full participation of GRIC," the ruling on Tuesday stated.

"The community's going to continue to pursue participation in the case," Thomas L. Murphy, the deputy general counsel at Gila River, told The Columbus Dispatch.

Read More on the Story:
5-year-old at center of custody dispute between Native American tribe, local guardian (The Columbus Dispatch March 14, 2018)

Court of Appeals of Ohio Tenth Appellate District Decision:
In re C.J. (March 13, 2018)