Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Thursday, December 27, 2018

Challenge to Indian Child Welfare Act

From NPR:

In 1978, with bipartisan support and led by congressmen and senators from the Western states, the Indian Child Welfare Act passed Congress and was signed into law by President Jimmy CarterCha

But in October, U.S. District Judge Reed O'Connor struck down the Indian Child Welfare Act as unconstitutional. The same Texas judge struck down the Affordable Care Act last week.


In October O'Connor ruled the Indian child law is a racially-based preference that discriminates against non-Indian families. Timothy Sandefur, vice-president for litigation at the Goldwater Institute in Phoenix, filed a brief in the case before Judge O'Connor.

"The problem was that it [the Indian Child Welfare Act] was so poorly worded that it now inflicts harm on Indian children that it was supposed to protect," Sandefur says. "We're working on a case right now in Ohio where there's a two-year-old Ohio boy born in Ohio, has lived in Ohio his entire life — almost his entire life — with an Ohio foster family. But because his ancestry is Gila River, the Gila River Indian tribe in Arizona obtained an order from its own tribal court forcing the child to be sent to live on the reservation near Phoenix. Simply because the blood in his veins happens to have the required amount of DNA. That's unconstitutional and absurd," says Sandefur.

Read more here.

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