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

Appeals court won't rule on challenge to Indian Child Welfare Act

A federal appeals court has turned away a closely-watched conservative challenge to the Indian Child Welfare Act.

The Goldwater Institute sued the federal government and the state of Arizona, arguing that ICWA is racist because it only applies to "Indian" children. But the 9th Circuit Court of Appeals declined to rule on the merits of the claim because a panel of judges noted that all of the four children involved in the case have been adopted.

"While plaintiffs’ appeal from the district court’s dismissal was going forward," the panel wrote in the unanimous decision, "plaintiffs’ adoptions all became final. The relief plaintiffs sought to redress their alleged injuries is no longer available to them."

Indianz.Com on SoundCloud: 9th Circuit Court of Appeals - Carol Carter v. Kevin Washburn

The decision marks yet another instance of the federal courts rejecting a race-based challenge to ICWA. Congress enacted the law in 1978 to prevent Indian children from being taken away from their tribal communities.

Fearful of a negative outcome, the Gila River Indian Community and the Navajo Nation intervened. Some of the children in the case are citizens, or are eligible for citizenship, in the two tribes.

But in an earlier stage of the case, Judge Neil Wake ruled that the BIA's ICWA guidelines do not carry the force of law. He also said the Goldwater Institute failed to show how the children were being harmed by the applicability of ICWA, Capitol Media Services reported.

The Arizona Republic also noted that all four children in the case ended up being adopted by non-Indian parents. When the case was filed, the parents were acting as fosters to the children.

9th Circuit Court of Appeals on YouTube: Carol Carter v. Kevin Washburn

"In defending ICWA, we are defending the rights of Native American children to not be forced into unwanted assimilation by the U.S. government," the office of Arizona Attorney General Mark Brnovich (R), one of the defendants in the case, said in a statement to the paper.

The statement pointed out that the late Barry Goldwater, the namesake of the conservative group, voted for ICWA when he served in the U.S. Senate, The Republic reported.

“Equal protection under the law is one of this country’s cornerstone principles, but ICWA denies Native American children this protection,” asserted Goldwater Institute staff attorney Adi Dynar, who argued the case before the 9th Circuit.

Timothy Sandefur, another attorney from the group, told The Republic that they will determine how to proceed with the case after seeing what happens with yet another ICWA challenge. The states of Indiana, Louisiana and Texas are plaintiffs in that lawsuit.

“When you look at the complaints you can see that they are attacking, in a very aggressive way, not just ICWA’s application under the constitution, but tribal sovereignty and tribal federal trust responsibility,” David Simmons, the government affairs and advocacy director for the National Indian Child Welfare Association, told The Establishment.

Turtle Talk has posted documents from the case, Carter. v. Tahsuda, formerly known as A.D. v Washburn.

Read More on the Story:
Court rejects challenge to Native American law on adoptions (The Arizona Republic August 6, 2018)
Appeals court throws out challenge to Native American Child Welfare Act (Capitol Media Services August 7, 2018)
The Government Is Attacking Native Families Through Their Children (The Establishment July 25, 2018)

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