A.D. v. Washburn

Read the Equal Protection for Indian Children Policy ReportRead the Policy Brief for Equal Protection for Indian ChildrenRead “Death On The Reservation” Investigative Report HereRead more about the California “Lexi” case

Executive Summary

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.[1] The Goldwater Institute is challenging certain provisions of the Act in order to vindicate the constitutional rights of off-reservation children of Indian ancestry[2] 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 Documents

Order granting motion to dismiss (3/16/17)Civil Rights Class Action Complaint for Declaratory and Injunctive Relief (7/7/2015)Carter Consolidated Response to Washburn Motion to Dismiss and McKay Motion to Abstain and Dismiss (11/18/2015) Carter Response to Amicus Curiae Briefs of Casey Family & NCAI (11/30/2015)Carter’s Motion for Leave to File First Amended ComplaintCarter’s Consolidated Reply to Defendants’ Responses to Plaintiffs’ Motion for Leave to File First Amended ComplaintFirst Amended Civil Rights Class Action Complaint for Declaratory, Injunctive, and Other ReliefState of Ohio’s Friend of The Court Brief in Support of the Goldwater InstituteGoldwater’s Opposition to Motion to Dismiss Amended ComplaintBackgrounder (07/07/15)

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.

GI Track Record

The Goldwater Institute has been a national leader in the movement to improve educational opportunities for children, to protect individual rights and freedom of all individuals, including their right to engage in legitimate business occupations. The Goldwater Institute spearheaded the Right to Try movement and was successful in getting Right to Try legislation passed in 22 states in 2015. Right to Try allows terminally ill patients to gain access to investigational treatments that have been approved by the FDA as safe.

Legal Team

Adi Dynar

Adi Dynar is a research attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.

Christina Sandefur

Christina Sandefur is Executive Vice President at the Goldwater Institute. As an attorney, she has won important victories for the rights of entrepreneurs, taxpayers, and property owners in Arizona. She is also a co-drafter of the Right to Try initiative, which protects terminally ill patients’ right to try safe investigational treatments that have been prescribed by their physician but are not yet FDA approved for market. She is the co-author of the book Cornerstone of Liberty: Private Property Rights in 21st Century America (2016). Christina is a graduate of Michigan State University College of Law and Hillsdale College.