UPDATED AT 5:44 EST: To include comments from the Navajo Nation. On March 16, the federal District Court for the District of Arizona dismissed A.D v. Washburn, a class action suit brought by the Goldwater Institute challenging the constitutionality of the Indian Child Welfare Act (ICWA). Filed in 2015, the suit alleged that Native children who are the subject of state custody proceedings are given “separate and unequal treatment” based on their race.
Last Thursday, however, federal Judge Neil Wake dismissed the case, rejecting the suit’s premise that the Indian children are “harmed” by the law, which was enacted in 1978 to protect them from being removed from their families and tribal communities. In his ruling, Judge Wake indicated that the plaintiffs had not suffered any “concrete and particularized, actual or imminent” injury in regards to the allegations contained within their petition.
“The legal questions Plaintiffs wish to adjudicate here in advance of injury to themselves will be automatically remediable for anyone actually injured,” Judge Wake continued. “… Any true injury to any child or interested adult can be addressed in the state court proceeding itself, based on actual facts before the court, not on hypothetical concerns.”
The dismissal of the Goldwater case represents the sixth attempt at overturning the Indian Child Welfare Act either in part or in full in jurisdictions across the country since the conclusion of Adoptive Couple v. Baby Girl in 2013. In that case, Dusten Brown, a member of the Cherokee Nation, fought unsuccessfully to retain custody of his biological daughter after a four year legal battle with a South Carolina couple that went to the Supreme Court.
Since then, lawyers affiliated with that case have launched failed cases in federal courts in South Carolina, Virginia, Oklahoma and Minnesota. In January, the United States Supreme Court declined to hear another appeal in In re: Alexandria P., (also known as “Lexi”) in which non-Indian foster parents Summer and Russell Page of Santa Clarita, California, fought a five year legal battle to retain custody of a Choctaw girl over the objections of her biological father, the Choctaw Nation and her guardian ad litem.
In a joint statement, the National Indian Child Welfare Association, the Native American Rights Fund, the National Congress of American Indians, and the ICWA Appellate Project at Michigan State University College of Law applauded the court’s decision as a victory for Native children and families.
“This case was an attempt by a special interest group to dismantle the law that has protected thousands of Native children and families nationwide,” said the statement. “The court’s holding was based on the fact that—contrary to Goldwater’s claims—no children were harmed by ICWA, a law designed by Congress to protect the rights of children and parents in child welfare proceedings.”
Gila River Indian Community in Arizona, one of the tribe’s whose child had been named as a plaintiff in the Goldwater case, welcomed the dismissal as a “signal of ICWA’s enduring strength.”
“The court’s ruling underscores how beneficial ICWA is for all involved in cases where it applies. Even determined ideological opponents of Native American interests could not find anyone the slightest bit injured by the provisions of this important federal statute,” said Gila River Indian Community Governor Stephen Roe Lewis in a statement. “ICWA is one of the most significant federal laws expressly recognizing tribal sovereignty and, when properly applied by state courts, works well.”
“The Indian Child Welfare Act must be protected for the benefit of our children. We will continue to advocate for our foster children to be placed with Navajo families,” said Vice President Jonathan Nez. “ICWA was created for the protection of native children and to this end, we will continue to advocate for it in these types of custody cases.”
“The Navajo Nation is very pleased with the outcome of this case, and we are proud of the work our Navajo Nation Department of Justice Attorneys did in securing this dismissal,” noted Attorney General Ethel Branch. “Children are the most important resource to the Navajo Nation. Without our children we have no future.”