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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


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.


  • 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]


United States District Court for the District of Arizona


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.

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