A federal judge is weighing the legality of a law governing the placement of Native American children.
 
The 1978 Indian Child Welfare Act gives tribal courts the right to decide adoption and foster care placement of Native American children. But the Goldwater Institute is challenging that right when it applies to cases where neither the biological parent nor the child has ever lived on the reservation. The only issue is their Indian blood.

Attorney Clint Bolick is asking Judge Neil Wake to declare that part of the law unconstitutional.
 
"In certain instances it would be appropriate for the tribe to have the primary jurisdiction over these kids," said Bolick. "That should be decided on a case-by-case basis. Too often we have Indian children — children who are deemed to be Indian under the law — who have had no ties whatsoever, no contacts. And they're placed with strangers."
 
At a hearing Friday, Assistant U.S. Attorney Christine Ennis told Wake that Congress does have the right to conclude that Native American children are, in essence, citizens of sovereign nations. And she said that gives tribal courts jurisdiction over their placement.

But Wake said all people have the constitutional right to travel if they do not want to be subject to the laws of where they were living. And he questioned whether Congress can legally give the tribes power over their members who have chosen to live off the reservation.