Challenging the Constitutionality of ICWA
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.
Case Documents
Legal Team
Timothy Sandefur
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government. He litigates to promote economic liberty, private property rights, free speech, and other crucial values in states across the country. Timothy is the author of eight books, including most… Read more...
Donate Now
Help all Americans live freer, happier lives. Join the Goldwater Institute as we defend and strengthen freedom in all 50 states.
Donate NowSince 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.