Two La Paz County children could be the subject of a hearing in the U.S. Supreme Court.
The children, ages 15 and 17, were the center of a 2016 custody dispute in which the father, a member of the Colorado River Indian Tribes, sought to sever the parental rights of his children’s mother. While many Arizona courts would render such a decision in accordance with the children’s best interests, CRIT maintains a higher standard for revoking parental rights, according to Lake Havasu City attorney Brad Rideout, who has advocated on the father’s behalf since 2012.
The children, identified in court documents as “Samuel” and “Samantha,” allege years of neglect, as well as a history of substance abuse by the children’s mother, who is not a tribal member.
Their mother maintains parental rights to her children, however, due to the Indian Child Welfare Act – a measure meant to protect children of Native American tribes from abuse by nontribal individuals and agencies. Their father, identified as “Garrett,” is a member of the Colorado River Indian Tribes. Due to the children’s native heritage, the decision of parental rights falls upon the tribe’s own court. “Garrett” requested the court sever the parental rights of his children’s mother in a 2016 hearing, but was denied.
Under the Indian Child Welfare Act, parental rights can only be severed if it is found beyond a reasonable doubt that the children are at severe risk of harm. Testimony to this fact must come from expert witnesses, and under tribal law, it must be proven that an effort was made to keep children with their biological parents.
According to Rideout, application of the Indian Child Welfare Act in custody cases such as this would be detrimental to the children involved. Rideout this week filed an appeal of CRIT’s decision with the U.S. Supreme Court.
“Applying ICWA to private (termination of parental rights) cases accomplishes no legitimate government purpose and causes extraordinary harm,” the appeal states. “It would mean that even Indian parents seeking termination in the best interests of their own children would be forced to make active efforts to reunify their children with the parent they consider unfit—a self-contradiction that would essentially force a parent to take steps she considers unsafe for her child. That simply does not secure the interests of the children or Indian tribes.”
According to Rideout, the higher standards for termination of parental rights under ICWA also make it much more difficult for an allegedly abusive guardian to lose his or her parental rights, making children more vulnerable to abuse than non-tribal children.
“In most cases, if a person is a danger to their children or abandons them, a parent can try to sever that person’s parental rights,” Rideout said. “In this case, the court used ICWA to keep the abuser in their children’s lives. The children shouldn’t be penalized by a law that’s meant to protect them. Her lifestyle exposed these children to things they never should have seen as children. She isn’t an ideal mom, and they don’t want her in their life.”
There is a reason behind the tribal court’s higher standard. Throughout the 19th and 20th centuries, the U.S. Bureau of Indian Affairs attempted to integrate Native American children into European-American culture by taking the children from their parents and placing them in boarding schools. These schools were rife with abuse, Rideout said, and children were routinely punished for speaking their native languages or practicing their native culture.
The National Indian Child Welfare Association, based in Washington, D.C., upholds ICWA as an effective measure against abuse. According to NICWA media spokesman David Simmons, Rideout’s case against ICWA isn’t one of race, but a matter of maintaining access to the children’s native and non-native heritage.
“It’s important in all cases to recognize the reasons for ICWA,” Simmons said. “Before ICWA, Indian children were denied basic protections, as well as access to their families and cultures. It has been well-documented that about 25-35 percent of native children were removed from their homes and placed far from their families and tribes. This has had a devastating effect on generations of Native Americans.”
According to Simmons, Native American families still endure intrusion by child welfare agencies, with native children being taken from their families at a rate of four times that of children of other races. “There is still bias in the system,” Simmons said. “It’s important to implement, and strengthen ICWA. We know that when it is applied well, children do well, and they have a stronger connection with their families.”
The father of “Samuel” and “Samantha” maintains custody of his children, and according to Rideout, their welfare is better for it.
Rideout has been joined in his endeavor by the Goldwater Institute, a conservative organization that advocates for personal rights. As the Goldwater Institute lends its aid, the U.S. Supreme Court may review Rideout’s case by the end of this year.
“Challenging the ICWA is an issue that can really, positively change things for a lot of people,” Rideout said.
Attorneys for CRIT could not be reached by telephone as of 5 p.m. Thursday.