Developments in Carter v. Washburn (Goldwater Litigation)

Here is the latest in the class action lawsuit arguing that ICWA is unconstitutional:

In the past month, the plaintiffs were granted leave to file an amended complaint with new named class representatives. Both the federal and state government again filed motions to dismiss.

Gila River then filed a motion to ask the court to make a decision on their motion to intervene, which the court denied in a particularly aggravating order.

Finally, in one of the strangest and most unprecedented actions in the case, the Ohio AG filed an amicus brief in support of Goldwater and against the Arizona AG’s motion to dismiss. For those who have contacts in their state AG’s offices, we continue to encourage you to be in touch with them and offer to provide information regarding ICWA and this case.

Update on Goldwater (ICWA Challenge) Filings

DOJ filed their reply to Plaintiffs response on Defendants’ motions to dismiss. Arizona also filed a strong reply. Filing is completed in this matter, and a hearing on the motion to dismiss will be held on December 18th.

Plaintiffs filed a response to the amicus briefs from Casey Family Programs et al and NCAI et al. In addition, Citizens Equal Rights Alliance also filed an amicus brief in support of the Plaintiffs’ motion to certify the class.

The ICWA Legal Defense Memo has been updated and is available here.

DOJ Motion to Dismiss and Supporting Amicus Briefs in Goldwater (ICWA) Litigation

Motion to Dismiss here.

Footnote 8:

Plaintiffs do not seek the type of reliefincreased funding or systemic changes in the quality of child-welfare services provided by state agencies – that the Ninth Circuit found unworthy of Younger abstention in Jamieson, 643 F.2d at 1354; instead, they demand that this Court enjoin state courts and agencies from applying long-standing state and federal laws to their ongoing child-custody proceedings, which clearly warrants equitable restraint under Younger.

(emphasis added)


Membership in a federally recognized Indian tribe, or being born the child of a member of such a sovereign entity, is not a forced association. ICWA does not require association, but rather protects associations that already exist.

In addition, Casey Family Programs plus twelve other national child welfare organizations filed this amicus brief (gold standard brief).

Finally, it is a key best practice to require courts to follow pre-established, objective rules that operate above the charged emotions of individual cases and that presume that preservation of a child’s ties to her parents is in her best interests. See National Council of Juvenile and Family Court Judges, supra, at 14. Application of the best-interests-of-the-child standard should be guided by substantive rules and presumptions because “judges too may find it difficult, in utilizing vague standards like ‘the best interests of the child,’ to avoid decisions resting on subjective values.” Smith v. Organization of Foster Families for Equal. & Reform, 431 U.S. 816, 835 n.36 (1977). Courts should not terminate a child’s relationship to a parent based on “imprecise substantive standards that leave determinations unusually open to the subjective values of the judge.” Santosky v. Kramer, 455 U.S. 745, 762-763 (1982).

Finally, the national Native organizations (NCAI, NICWA, AAIA) also filed this amicus brief (historical brief).

The Indian Child Welfare Act must be viewed in light of the historical abuses that it was intended to stop. For most of American history prior to ICWA’s enactment, federal Indian policy favored the removal of Indian children from their homes as a means of eroding Indian culture and tribes. State and private child welfare agencies later took on the implementation of these policies, carrying them out with little concern for the families or communities they affected. By the 1970’s, the widespread and wholesale removal of Indian children from their parents and communities resulted in a crisis recognized as “the most tragic and destructive aspect of American Indian life today.” H.R. REP. No. 95- 1386, at 9 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7532.

A.D. v. Washburn–ICWA Class Action Suit

Complaint here.

Quite the first paragraph:

By honoring the moral imperatives enshrined in our Constitution, this nation has successfully shed much of its history of legally sanctioned discrimination on the basis of race or ethnicity. We have seen in vivid, shameful detail how separate treatment is inherently unequal. Brown v. Board of Education, 347 U.S. 483, 495 (1954). There can be no law under our Constitution that creates and applies pervasive separate and unequal treatment to individuals based on a quantum of blood tracing to a particular race or ethnicity. This country committed itself to that principle when it ratified the Fourteenth Amendment and overturned Dred Scott v. Sandford, 60 U.S. 393 (1857), and when it abandoned Plessy v. Ferguson, 163 U.S. 537 (1896).

This complaint goes directly at the right of tribes to determine their tribal citizenry. From this paragraph on, the complaint bases everything on the “child’s race” or “Indian ancestry” and their “unequal treatment” under ICWA:

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.

The Goldwater Institute’s roll out and website regarding the case. This is highly funded, highly professional media campaign.

Order in Save the Peaks v. USFS

The judge in Save the Peaks Coalition v. USFS found against the Coalition, and granted USFS’s motion for summary judgment.  The complaint is here.  Here’s the order.

Plaintiffs fail to explain how their failure to join the prior case is materially distinguishable from that of the plaintiffs in Apache Survival II, and the Court finds that Defendants will be sufficiently prejudiced to satisfy laches. Therefore, based on the particular circumstances of this case, the Court finds that Defendants have established this affirmative defense.

And here is the press release from Save the Peaks coalition:


DATE:            Wednesday December 1, 2010

CONTACT:    Howard Shanker


NOTE TO EDITORS: For a background, legal documents, photos, updates, and further information please visit: . Interviews can be arranged.

District Court Rules For USFS in Save the Peaks Case
Plaintiffs will Appeal the Court’s Decision to the Ninth Circuit Court
FLAGSTAFF, AZ — The case known as The Save the Peaks Coalition, et al. v. U.S. Forest Service (USFS) was heard before Honorable Judge Mary H. Murguia and today a decision was made.

The Court ruled against the plaintiffs claims that the final FEIS prepared by the USFS ignores thorough consideration of a number of critical health issues. The plaintiffs contend that a new and thorough FEIS should be filed by the USFS. If this reveals that the use of reclaimed sewage water is a public health risk then snowmaking should not be permitted for the Arizona Snowbowl on the San Francisco Peaks.

Howard Shanker, representing the Save the Peaks Coalition and additional plaintiffs, will file an appeal to the Ninth Circuit Court. According to Shanker, “ the decision misstates the facts of this case and misapplies the law.  That’s why there is an appeal process.” Further, according to Shanker, “it is remarkable that the Obama Administration is complicitous in this effort to put treated sewer water on the San Francisco Peaks.  Not only is the site sacred to Native Americans in the Southwestern United States, the Forest Service has, at best, no idea what the long term health impacts will be on people who ingest this snow made from treated effluent.  Who figured the Snowbowl ski area was ‘too big to fail’”.
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