Ninth Circuit Briefing in A.D. v. Washburn (Tahsuda)(Goldwater Case)

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.

20_Opening Brief_09-01-2017




53 – Goldwater Reply Brief




Ninth Circuit Briefing in A.D. v. Washburn (Goldwater Litigation)

Here is the case page.

20_Opening Brief_09-01-2017




And yes, the case caption should eventually change–Carter et. al. v. Tahsuda et. al. is how the U.S. brief is captioned.

ICWA Links and Resources from Arizona Talk

I gave a talk last week in Arizona. Here are some links and resources from that presentation:

The presentation

Cases I discussed:

In re T.A.W.

In re D.H. Jr.

In re A.O.

In re L.M.B.

Carter v. Washburn/Goldwater class action

In re S.S.


Fletcher and Singel, Indian Children and the Federal-Tribal Trust Relationship (I read quotes from pp 945-950)

The ICWA Regulations in final CFR format, 25 CFR pt. 23 (Title 25 regs are put into the CFR every April, hard copies are available in July(ish)).


Goldwater Litigation on the Constitutionality of ICWA Dismissed Without Prejudice

This is the attempted class action litigation claiming ICWA violated the Constitution.This is a big win for ICWA and the legal advocates who worked on this case at the state, federal, and tribal levels.

Here is the Order.

The legal questions Plaintiffs wish to adjudicate here in advance of injury to themselves will be automatically remediable for anyone actually injured. The very allegations of wrongfulness are that such injuries will arise in state court child custody proceedings, directly in the court processes or in actions taken by state officers under the control and direction of judges in those proceedings. Any true injury to any child or interested adult can be addressed in the state court proceeding itself, based on actual facts before the court, not on hypothetical concerns. If any Plaintiffs encounter future real harm in their own proceedings, the judge in their own case can discern the rules of decision. They do not have standing to have this Court pre-adjudicate for state court judges how to rule on facts that may arise and that may be governed by statutes or guidelines that this Court may think invalid.

Here is the joint press release from the ICWA Defense Project.

News Coverage of Goldwater (ICWA Litigation) Hearing

News coverage that confirms all accounts we received that this was a very difficult and discouraging hearing.

This hearing was on DOJ’s motion to dismiss the Goldwater ICWA litigation, which is contesting the constitutionality of ICWA. Relevant documents are here.

In response to questions we’ve been getting–this hearing was only on the government’s motion to dismiss. By the looks of it, the judge is not likely to dismiss the case at this point. Next up in the litigation is a fight over class certification, which the judge was delaying full briefing on until after the decision on the motion to dismiss. There will also be rulings on Navajo Nation and Gila River’s motions to intervene. Short answer to what the hearing likely means–this is looking like a long slog. We would really love to be wrong.

Briefing Completed in Gila River Indian Community Motion to Intervene in ICWA Goldwater Litigation

47 – Gila River Motion to Intervene

72 – OppositiontoGilaIntervention

76 – Gila River Reply in Support of Motion to Intervene

Plaintiffs in the case also filed their response to DOJ’s motion to dismiss. A hearing on the matter is scheduled for December 18.

Collected filings 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.