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Through a federal suit in 2007, Hobbs Straus attorneys obtained protection of tribal court authority over child custody proceedings.

General Memorandum 16-009

General Memorandum 16-009
Goldwater Institute Litigation Challenge to the Constitutionality of ICWA

Introduction. On July 7, 2015, the Goldwater Institute initiated Carter et al. v. Washburn in the United States District Court for the District of Arizona challenging the Indian Child Welfare Act (ICWA) and the Department of the Interior's 2015 implementing guidelines. Among other claims, the suit alleges ICWA violates the U.S. Constitution's Fifth Amendment Equal Protection Clause because it is impermissibly race-based.

Constitutional Threat. By arguing that ICWA is an impermissible race-based law, and therefore unconstitutional, the Goldwater Institute is not only attacking the legitimacy of ICWA alone, but also of a number of other Indian statutes that enshrine the federal government's trust responsibility to tribes, which is based on a political relationship, not a racial one. If ICWA were found to be unconstitutionally race-based, that holding would open the door to challenging whether other Indian statutes treat tribes or Indians differently based on race rather than political status.

This case comes on the heels of the 2013 Supreme Court decision in Adoptive Couple v. Baby Girl, in which four anti-tribal briefs argued that ICWA was unconstitutional. The Court noted this argument and expressed concern regarding whether ICWA complies with the Equal Protection Clause. While the Goldwater Institute's suit makes its way through the judicial system, other similar state and federal court cases are also winding their way through the system—threatening an eventual revisit to the Supreme Court.

Background. ICWA applies to children who are members of a tribe and to children eligible for membership whose biological parent is a member of a tribe. Membership eligibility requirements are determined by each tribe, and some tribes require only lineal descent. ICWA dictates certain actions be taken when a Native child is at risk of being removed from his or her home or has been removed from his or her home due to child abuse or neglect allegations. The actions ICWA requires are intended to maintain the Native child's ties to his or her tribe. Thus, ICWA provides for transfer of child welfare proceedings to tribal court. It also requires active efforts be made to prevent breakup of the Native family and a high burden of proof be met before Native children are placed in foster care or parental rights are terminated. Additionally, ICWA creates placement preferences for foster care and adoption that aim to keep the Native child with family or connected to the tribe.

The Goldwater Institute—through a next of friend and foster parents seeking adoption—brought suit on behalf of two children with Native mothers and unknown fathers. The children are either members of or eligible for membership in the Gila River Indian Community and the Navajo Nation. Gila River has indicated its intent to seek transfer of the adoption proceedings from Arizona court to tribal court. Navajo has suggested multiple alternative ICWA-compliant placements, thereby affecting Arizona's ability to deem the Native child cleared for adoption. The Goldwater Institute seeks to certify the suit as a class action on behalf of all children with Indian ancestry living in Arizona outside of Indian country as well as non-Indian foster and adoptive parents living in Arizona outside of Indian country.

The suit asserts that Native children, based on their race alone, face unequal treatment under ICWA that requires them to remain in unsafe homes, delays their permanent placement with adoptive families, and results in removal from foster homes for placement with ICWA-compliant homes unfamiliar to them. The suit argues ICWA is subject to and fails strict scrutiny, thus violating the Equal Protection Clause. According to the suit, the principles articulated in Morton v. Mancari, in which the Supreme Court found the Indian statute at issue was not subject to strict scrutiny because the law was targeted at members of a political entity rather than racial group, do not apply to ICWA because ICWA's application turns on individuals' race alone.

On December 18, 2015, a hearing was held before Judge Neil Wake on the federal government's motion to dismiss the case. He stated that Morton v. Mancari is not sufficient to dispose of the case, but rather there is a boundary beyond which the principles in Morton v. Mancari do not apply. He said that ICWA falls somewhere on the periphery, based in part on his expressed doubt regarding the restrictiveness with which tribes define their membership criteria. Next steps in the case will involve decisions regarding class certification and whether Navajo and Gila River are permitted to intervene.

We will continue to monitor this important case as it moves forward.

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Inquiries may be directed to:
Greg Smith (gsmith@hobbsstraus.com)
Katie Klass (kklass@hobbsstraus.com)

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