Cherokee Nation Chief Bill John Baker, left, discusses an Indian Child Welfare Act case that was heard by the U.S. Supreme Court in April 2013. Dusten Brown, in sunglasses, was forced to give up his daughter after the justices ruled against him in June of that year. Photo from National Congress of American Indians / Flickr

Conservative groups and conservative legal figures are trying to invalidate the Indian Child Welfare Act of 1978, ThinkProgress reports.

The battle is largely taking place in the courts. The Goldwater Institute of Arizona, for example, is seeking class action status for a lawsuit that claims ICWA violates the U.S. Constitution because, in the views of conservatives, it only applies to one "race" -- Indian children.

The U.S. Supreme Court has repeatedly held that Congress can enact laws that apply to Indian people based on their political -- not racial -- status. But conservative opponents see hope in people like Justice Clarence Thomas, whose concurring opinion in Adoptive Couple v. Baby Girl argued that ICWA is illegal based on his interpretation of the Indian Commerce Clause.

"In light of the original understanding of the Indian Commerce Clause, the constitutional problems that would be created by application of the ICWA here are evident," Thomas wrote in June 2013. "First, the statute deals with 'child custody proceedings,' not 'commerce.'"

"Second, the portions of the ICWA at issue here do not regulate Indian tribes as tribes," he continued.

Conservative groups also see hope in people like Paul Clement, a high-profile Republican attorney who participated in the Adoptive Couple case that resulted in a Cherokee Nation girl being taken from her Cherokee father. He made a similar race-related argument against the Indian Gaming Regulatory Act in a different case, ThinkProgress reported.

The Goldwater case is still in its early stages but it has attracted significant attention in Indian Country. The Navajo Nation and the Gila River Indian Community are both seeking to intervene in the case.

The organization also unveiled a slick website and released an alarmist report in hopes of swaying public sentiment. Ironically, ThinkProgress points out that Barry Goldwater, the conservative namesake of the group, supported ICWA when he served in the U.S. Senate.

“He’d be rolling over in his grave,” law professor Robert A. Williams Jr., told ThinkProgress.

Get the Story:
Why A Conservative Legal Organization Is Desperately Trying To Kill The Indian Child Welfare Act (ThinkProgress 4/8)

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