Recent Developments in Indian Child Welfare Act Litigation: Moving Towards Equal Protection?

37 Pages Posted: 24 Nov 2018

Date Written: October 15, 2018


The Indian Child Welfare Act (ICWA) is a federal law that creates a separate, and less-protective, set of rules for child welfare cases, foster care cases, and adoption cases involving children who are either members of an Indian tribe or are "eligible" for tribal membership and have a biological parent who is a member. Critics of ICWA argue that this creates a race-based distinction in violation of equal protection mandates. Critics also contend that ICWA intrudes on state authority to manage their own child welfare laws, exceeding Congress's Commerce Clause authority and the Tenth Amendment.

Recent cases in federal and state court raise these and other important constitutional issues. In one case pending in the Ninth Circuit, a group of plaintiffs sought to challenge six separate provisions of ICWA on constitutional grounds; that case was dismissed for lack of standing, but a similar case in Texas federal court, was allowed to proceed. That case includes several state attorneys general as plaintiffs.

Meanwhile, courts in Arizona, California, Utah, and Ohio, have issued important rulings on how ICWA is to be applied--holding that ICWA applies even in private intra-family disputes that involve no government or private adoption agency, imposing a new deadline for acknowledging the paternity of an Indian child, and holding that a tribe lacks authority to intervene in an ICWA case after the termination of parental rights.

This article surveys these cases to provide an update on important legal controversies involving ICWA that must ultimately reach the Supreme Court.

Keywords: ICWA, Indian Child Welfare Act, Native American, Indian, Mancari, Equal Protection

Suggested Citation

Sandefur, Timothy, Recent Developments in Indian Child Welfare Act Litigation: Moving Towards Equal Protection? (October 15, 2018). Texas Review of Law & Politics, Forthcoming, Available at SSRN:

Timothy Sandefur (Contact Author)

Goldwater Institute ( email )

500 E. Coronado Rd.
Phoenix, AZ 85004
United States
(602) 462-5000 (Phone)
(602) 256-7045 (Fax)


Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics