A message to the conservative Goldwater Institute, which is challenging the constitutionality of the Indian Child Welfare Act. Photo: Defend ICWA

Law | National

Conservative group launches another attack on Indian Child Welfare Act

Monday, July 24, 2017

A conservative group with a history of attacking the Indian Child Welfare Act is back at it, this time with a petition to the nation's highest court.

The Goldwater Institute in Arizona is rehashing claims that the 1978 law violates the U.S. Constitution because it is based on "race." Even though the faulty premise goes against decades of settled law and well-established policy, the group is hoping the U.S. Supreme Court will take notice.

"All American children deserve to be treated the same and not be categorized by race," Timothy Sandefur, the vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation, asserted in a press release.

Sandefur is "litigating several ICWA-related cases across the country," the release notes. But it omits one key development -- in March, a federal judge in Arizona ruled against Goldwater in a different case that sought to undermine the law.

Another legal setback was glossed over too. Before Goldwater even joined the case at issue in the new petition, the Arizona Court of Appeals flat out rejected claims that ICWA is based on "race."

"We join the several other courts that have concluded that the additional requirements ICWA imposes on severance of a parent's rights to an Indian child are based not on race, but on Indians' political status and tribal sovereignty, and that those requirements are rationally related to the federal government's desire to protect the integrity of Indian families and tribes," Judge Diane M. Johnsen wrote in the unanimous January 12 decision.

The U.S. Supreme Court at night. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Despite the court losses, the "race" tactic is a tried and true one among conservative groups and Republican members of Congress. Merely bringing the issue up is enough to derail legislation or generate media coverage that paints Indian Country in a negative light.

The new petition centers on two children who are citizens of the Colorado River Indian Tribes. The Arizona court ruled that their non-Indian father must comply with ICWA before he attempts to sever the parental rights of their mother, who is also a tribal citizen.

"By its own terms, ICWA applies to any petition to terminate a parent's rights," Johnsen wrote in the 11-page ruling.

Goldwater filed a petition to reverse the Arizona ruling on July 17, according to Docket No. 17-95. The Colorado River Indian Tribes have until August 18 to respond, unless an extension is granted.

The Indian mother and non-Indian father, who are divorced, are also parties in the case. But Goldwater listed the tribe first in its petition -- in the Arizona court, the parents were listed first.

After the tribe and the parents respond, Goldwater will be able to file one more brief before the Supreme Court reviews the petition. Once that review is complete, the court will then announce whether it will hear the case.

The last ICWA case heard by the Supreme Court was Adoptive Couple v. Baby Girl. By a 5-4 vote, the justices held a citizen of the Cherokee Nation could not invoke the law due to specific facts affecting the custody of his daughter, who was adopted by a non-Indian couple.

Conservative groups and opponents of ICWA were pushing the court to weaken the law but that didn't happen in the June 2013 decision. The new cases represent an attempt to keep their agenda alive.

Arizona Court of Appeals Decision:
S.S. v. Stephanie H. (January 12, 2017)