Death on a Reservation
Equal Protection for Indian Children
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EQUAL PROTECTION FOR INDIAN CHILDREN
THE CONTINUING FIGHT TO ACHIEVE EQUAL PROTECTION
Briefing on the motions to dismiss is complete.
Await the court’s decision.
Read more about the California “Lexi” case
Alone among American children, children with Indian ancestry who end up in state protective custody are treated not in accord with their best interests but given separate, substandard treatment solely because of their race. This separate, unequal treatment results from a well-intentioned but a profoundly flawed and unconstitutional federal law, the Indian Child Welfare Act. The Goldwater Institute is challenging certain provisions of the Act in order to vindicate the constitutional rights of off-reservation children of Indian ancestry in Arizona, and their foster and prospective adoptive parents. The civil rights class action is based on the fundamental principles of equal treatment under law, respect for individual rights, and federalism embedded in the federal Constitution.
The Goldwater Institute filed a class action on behalf of all off-reservation Arizona-resident children with Indian ancestry in child custody proceedings and the foster, preadoptive and prospective adoptive parents of these children.
- Kevin Washburn, Assistant Secretary of the Bureau of Indian Affairs, sued in his official capacity. He has primary authority to enforce ICWA and BIA Guidelines.
- Sally Jewell, Secretary of the Interior, U.S. Department of the Interior, in her official capacity. The Department of the Interior is the cabinet agency of which BIA is a part and which is assigned enforcement powers under ICWA.
- Gregory McKay, Director, Arizona Department of Child Safety, in his official capacity. The Director has the statutory duty under Arizona law to “protect children.” The Director is also required to ensure that DCS complies with ICWA.
United States District Court for the District of Arizona
Judge Neil V. Wake
Certain provisions of ICWA and BIA Guidelines should be declared unconstitutional and defendants should be permanently enjoined from enforcing those provisions.
Attorneys from Cooper & Kirk, PLLC – a law firm in Washington, D.C. – Michael Kirk, Brian Barnes, and Harold Reeves serve as pro bono co-counsel.
GI Track Record
The Goldwater Institute has been a national leader in the movement to improve educational opportunities for children, to protect individual rights and freedom of all individuals, including their right to engage in legitimate business occupations. The Goldwater Institute spearheaded the Right to Try movement and was successful in getting Right to Try legislation passed in 22 states in 2015. Right to Try allows terminally ill patients to gain access to investigational treatments that have been approved by the FDA as safe.
 Indian Child Welfare Act, Pub. L. 95-608, 92 Stat. 3069 (1978), codified at 25 U.S.C. §§ 1901-1963.
 The Act defines “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe” 25 U.S.C. § 1903(4). Most Indian tribes have only blood quantum or lineage requirements as prerequisites for membership. See Miss. Band of Choctaw Indians Const. art. III, § 1; Cherokee Nation Const. art. IV, § 1; Choctaw Nation of Okla. Const. art. II, § 1; Muscogee (Creek) Nation Const. art. III, § 2; Gila River Indian Community Const. art. III, § 1; Navajo Nation Code § 701; Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10146, 10153, B.3 (February 25, 2015) (“New Guidelines”). Consequently, ICWA’s definition of “Indian child” is based solely on the child’s race or ancestry. Some of the tribes consider individuals with only a tiny percentage of Indian blood to be Indian, even if they have little or no contact or connection with the tribe. See, e.g., Cherokee Nation Const. art. IV, § 1.
 A.R.S. § 8-451 et seq.
 A.R.S. § 8-453(a)(20).
Adi Dynar is a research attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
Christina Sandefur is Executive Vice President at the Goldwater Institute. As an attorney, she has won important victories for the rights of entrepreneurs, taxpayers, and property owners in Arizona. She is also a co-drafter of the Right to Try initiative, which protects terminally ill patients’ right to try safe investigational treatments that have been prescribed by their physician but are not yet FDA approved for market. She is the co-author of the book Cornerstone of Liberty: Private Property Rights in 21st Century America (2016). Christina is a graduate of Michigan State University College of Law and Hillsdale College.