A message to the Goldwater Institute, a conservative organization that has repeatedly attacked the Indian Child Welfare Act. The late Sen. Barry Goldwater (R-Arizona), the namesake of the organization, voted in favor of the 1978 law. Photo: Defend ICWA

Law | National

Supreme Court won't take up race-based challenge to Indian Child Welfare Act

Monday, October 30, 2017

Another conservative attack on the Indian Child Welfare Act has been rebuffed by the nation's highest court.

Without comment, the U.S. Supreme Court denied a petition in S.S. v. Colorado River Indian Tribes. The action, which came in an order list on Monday morning, lets stand a decision from Arizona, where opponents of ICWA tried to undermine the landmark law by claiming it is based on "race."

The Arizona Court of Appeals rejected that contention in a January 12 decision. And the Colorado River Indian Tribes, whose attorneys participated in the case to protect two children who have been involved in a custody dispute, noted that the "race" issue has long been settled.

The Supreme Court, the tribe's attorneys wrote in a brief, has already determined that "statutes dealing with Indians do so on the basis of membership in or affiliation with a federally recognized tribe, not on race."

But conservative groups like the Goldwater Institute don't seem ready to end their anti-ICWA campaign despite losing repeatedly in the courts. The organization is rehashing the same "race" argument in another case in neighboring California.

Their efforts have drawn support from other groups in the conservative sphere. The Supreme Court allowed the Pacific Legal Foundation, which is based in California, to submit a brief in the S.S. case before rejecting the petition on Monday.

Congress enacted ICWA in 1978 to address the high rates of Indian children being separated from their tribal families and their tribal communities. The law recognizes the sovereign interests of tribes in Indian child welfare cases.

Decades later, tribal advocates say compliance has been spotty, with California and South Dakota often singled out as problem states. During the Obama administration, the Bureau of Indian Affairs took steps to strengthen the law. Some of those initiatives are being challenged by conservative groups and the adoption industry.

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