Recently, the Goldwater Institute has stepped into an entirely different legal arena: an effort to dismantle a landmark law called the Indian Child Welfare Act. ICWA requires that before private and public agencies place Native American children in foster care or with an adoptive family, they try to keep nuclear families together or, if that fails, to place children with their extended family, their tribe, or a member of another tribe. It was passed in 1978 after government programs removed a large number of American Indian children from their families. But Goldwater and Sandefur argue that, rather than protecting Indian children, ICWA subjects them to an unfair set of rules that don’t apply to other kids—a type of discrimination that Sandefur likens to Jim Crow.
ICWA “is obviously racial discrimination,” Sandefur said when I visited his office in March. Picking up a biography of the abolitionist Frederick Douglass, he added: “I’ve been writing a lot about my great hero Frederick Douglass. I think his answer is that we all have a right to be treated equally by the law.”
Cloaking its efforts in the language of civil rights, Goldwater has launched a coordinated attack against ICWA alongside evangelical and anti-Indian-sovereignty groups, adoption advocates, and conservative organizations like the Cato Institute. Since 2015, Goldwater has litigated four state or federal cases against ICWA, and filed several briefs in support of other cases. Goldwater’s stated goal is to have the US Supreme Court strike down ICWA as unconstitutional. The implications go far beyond child welfare: Many tribal members fear that if Goldwater is successful, it could undermine the legal scaffolding of Native American self-determination.
Gary Williams, a member of Arizona’s Gila ?River Indian Community, was driving across the Arizona desert, listening to the radio, when he first heard about one of the Goldwater Institute’s ICWA lawsuits. Williams immediately pulled over to the slim edge of the highway to listen carefully. His heart raced.
Williams is a living example of what could happen to American Indian children without what he calls “the safety net” of ICWA. His mother, a member of the Gila River Indian Community, died before he turned 1, and before ICWA was law. Williams and his three older siblings were placed in Arizona’s foster-care system. Over the next 15 years, he was separated from his siblings and sexually and physically abused.