Federal Law Will Stand Despite Challenge That It Places Tribal Interest Over Children's Safety

By Holliday Moore
Howie Fischer, Capitol Media Services
Published: Monday, March 20, 2017 - 9:34am
Updated: Wednesday, March 22, 2017 - 5:42pm

A federal judge has thrown out a challenge to a nearly 40-year old law originally written to re-unite Native American children with tribal relatives.

Two years ago, Arizona attorneys representing Native American children, challenged the law saying it overruled state laws that protect children over tribal wishes.  

The Goldwater Institute originally started the suit representing two children, but sought to make the case a class action suit on behalf of all Native American children facing possible abuse.

In 1978, the federal courts adopted a law to prevent states from severing parental rights and approving adoptions of Native American children who no longer lived on reservations.  

Goldwater Institute spokesman Timothy Sandefur said certain provisions in that law “require these children to be sent back to the parents that have abused them.''  

His team went further calling the federal law “racist” because it overlooks state laws that place the “best interest of the child” over tribal interest.

“It's unconstitutional," Sandefur said. "And we are entitled to a federal court order to protect these children from suffering this kind of discrimination."

But, Assistant State Attorney General Dawn Williams questioned Sandefur’s logic for changing the law.

“The federal law was enacted to remediate generations of forced assimilation,” she wrote and argued the lawsuit cited only, “nebulous speculative harm” to the children in the case.

U.S. District Court Judge Neil Wake agreed and in his final decision wrote, "Any true injury to any child or interested adult can be addressed in the state court proceeding itself, based on actual facts before the court, not on hypothetical concerns.”

EDITOR'S NOTE: The story has been updated to correct who started the lawsuit.

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