Frequently Searched

Challenging the Constitutionality of ICWA

A.D. v. Washburn

Case Status

Date Filed

July 7, 2015

Last Step

Goldwater Institute filed petition for certiorari in the U.S. Supreme Court.

Next Step

Awaiting response to petition for certiorari.

Case Overview

Alone among American children, children with Indian ancestry who end up in state protective custody are treated not in accord with their best interests but given separate, substandard treatment solely because of their race. This separate, unequal treatment results from a well-intentioned but a profoundly flawed and unconstitutional federal law, the Indian Child Welfare Act. The Goldwater Institute is challenging certain provisions of the Act in order to vindicate the constitutional rights of off-reservation children of Indian ancestry in Arizona, and their foster and prospective adoptive parents. The civil rights class action is based on the fundamental principles of equal treatment under law, respect for individual rights, and federalism embedded in the federal Constitution.

Case Logistics

Plaintiffs

The Goldwater Institute filed a class action on behalf of all off-reservation Arizona-resident children with Indian ancestry in child custody proceedings and the foster, preadoptive and prospective adoptive parents of these children.

Defendants

  • Kevin Washburn, Assistant Secretary of the Bureau of Indian Affairs, sued in his official capacity. He has primary authority to enforce ICWA and BIA Guidelines.
  • Sally Jewell, Secretary of the Interior, U.S. Department of the Interior, in her official capacity. The Department of the Interior is the cabinet agency of which BIA is a part and which is assigned enforcement powers under ICWA.
  • Gregory McKay, Director, Arizona Department of Child Safety, in his official capacity. The Director has the statutory duty under Arizona law to “protect children.”[35] The Director is also required to ensure that DCS complies with ICWA.[36]

Court

United States District Court for the District of Arizona

Judge

Judge Neil V. Wake

Relief sought

Certain provisions of ICWA and BIA Guidelines should be declared unconstitutional and defendants should be permanently enjoined from enforcing those provisions.

Other Counsel

Attorneys from Cooper & Kirk, PLLC – a law firm in Washington, D.C. – Michael Kirk, Brian Barnes, and Harold Reeves serve as pro bono co-counsel.

Donate Now

Help all Americans live freer, happier lives. Join the Goldwater Institute as we defend and strengthen freedom in all 50 states.

Donate Now

Since 1988, the Goldwater Institute has been in the liberty business — defending and promoting freedom, and achieving more than 400 victories in all 50 states. Donate today to help support our mission.

We Protect Your Rights

Our attorneys defend individual rights and protect those who cannot protect themselves.

Need Help? Submit a case.

Get Connected to Goldwater

Sign up for the latest news, event updates, and more.

Wait! Don’t close this yet!

We are grateful for your support of the Goldwater Institute’s efforts to advance and defend liberty throughout the United States. For over 36 years, we’ve been defending the rights of Americans to live their lives free from government interference.

And Goldwater is unique in that we direct our efforts to the 50 states where we introduce and advance innovative ideas that expand freedom. And we fight in courtrooms and capitals nationwide to defend individual liberty.

In 2024 alone, we scored over 50 policy and litigation victories defending liberty!

And that’s just the beginning.

Our plans for 2025 include:

  • Stopping pernicious DEI and other woke programs in America’s universities.
  • Ensuring that patients suffering from rare and terminal diseases have access to cutting-edge, lifesaving medical treatments, without having to first seek permission from the government.
  • Defending parental rights across the United States so that parents can send their kids to the school that best fits their needs, free from leftist indoctrination.
  • Eliminating government interference in the fundamental right of individuals to own property and use it as they see fit.
  • And much, much more

We seek to restore the presumption of liberty; that people are free to act without first asking permission from the government.

But we cannot do this without you. Will you join us as we fight to preserve and advance liberty throughout the country? As we seek new and innovative ways to defend freedom in all 50 states?

And there’s great news: Thanks to a generous Goldwater supporter, your donation today will be doubled!

So please, join us in fighting to advance liberty and score real wins for freedom from coast to coast!