This should be the end of this litigation (the original 2015 “Goldwater case”), as the Ninth Circuit vacated and remanded the case below to have it dismissed as moot.
This is otherwise known as the Goldwater litigation, the second federal case filed back in 2015 in Arizona.
Documents are here
This is the appeal of the dismissal of the case in the federal District of Arizona purporting to represent all Native children in foster care in Arizona and their non-Indian foster parents or adoptive placements. The Goldwater Institute appealed the dismissal ot the Ninth Circuit.
One of the children in this case was originally the named plaintiff in A.D. v. Washburn (also called Carter v. Washburn, or the Goldwater litigation). Goldwater is representing the foster parents in this case, now in state court. Tom Murphy, in-house at GRIC, is doing the oral argument for the tribe here.
The ICWA Defense Project (NCAI, NARF, NICWA, and ICWA Appellate Project) has updated the memo detailing the various federal court challenges to ICWA.
On February 25, 2015, the Bureau of Indian Affairs (BIA) published revisions to the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings. These revised Guidelines address areas of Indian Child Welfare Act (ICWA) non-compliance occurring over the past 36 years.
One month later, the BIA proposed to advance its reforms by proposing draft federal Regulations to govern the implementation of ICWA in state courts and agencies. On June 17, 2016, the BIA issued final Regulations for Indian Child Welfare Act Proceedings, as well as Frequently Asked Questions regarding the final rule. In addition, the U.S. Department of the Interior Solicitor issued a Memorandum describing BIA’s authority to issue the Regulations.
In response to the 2015 reforms, a network of ICWA opponents filed multiple lawsuits challenging the Guidelines and ICWA’s constitutionality. The National Indian Child Welfare Association (NICWA), the Native American Rights Fund (NARF), the National Congress of American Indians (NCAI), and the ICWA Appellate Project at Michigan State University College of Law—collectively known as the ICWA Defense Project—are working collaboratively to defend ICWA and the long overdue reforms.
This memorandum summarizes the pending litigation and describes some of the legal and communications strategies developed by these partner organizations to inform, advance, and unify a coordinated effort across Indian Country in response to these attacks.
A long article with lots of great sources (Shannon Smith of the ICWA Law Center is quoted extensively, for example) and solid research.
Despite what the URL might indicate, the video and site do not belong to an organization with a long history of pushing to expand civil rights protections to minority groups. Rather, they are part of a campaign by the Goldwater Institute — a conservative legal organization mostly known for its anti-government and pro-property rights work — aimed at eliminating ICWA, a 1978 federal law designed to protect Native American kids from more than 100 years of government-mandated assimilation. That legislation established tougher requirements for removing Native American children from their biological families and gave federally recognized tribes control over the adoption and custody processes for their citizens’ kids.
Matthew L.M. Fletcher, who directs the Indigenous Law and Policy Center at the Michigan State University College of Law says the key function of ICWA is that it “gives tribes a chance to have a say in what happens to their kids.” He notes that the due process requirements it provides have been held up by child welfare advocacy groups as “the gold standard for child welfare decisions for all children.”
Kathryn E. Fort, who works with Fletcher at MSU’s Indigenous Law and Policy Center, agrees. “I think what ICWA has done is given a backstop, in many ways, to the worst abuses,” she said. But recent problems in South Dakota, for instance, are proof that there are “still counties where they’re just not following the law.” Last March, a federal judge found that state officials had improperly removed scores of Native American children in one county from their parents’ custody, failing to follow ICWA’s procedure.
If the Goldwater Institute’s challenge is successful, not only will the strongest tool to stop those kinds of discrimination be taken away — so might a whole host of other laws.