The Goldwater Institute, a think tank in Arizona, has brought a lawsuit challenging the Indian Child Welfare Act of 1978 (ICWA). It alleges that the law is unconstitutional because it discriminates based on race. The law was originally passed to protect children with Native American or Alaskan Native heritage from being unnecessarily removed from their homes and to give the tribe a right to be involved in the adoption.

The lawsuit is on behalf of two sets of foster parents seeking to adopt a child with ties to the Gila River Indian Community and a child with ties to the Navajo Nation. The families believe that the Act has delayed the adoption process, and that it makes it more difficult to remove Native children from abusive homes.

The American Academy of Adoption Attorneys shared commentary with the Goldwater Institute, and heralds the lawsuit. “While we recognize that culture should be a consideration, it should never control when its application would be detrimental to a child’s needs, and would disregard the constitutional rights of children and their parents,” said the Academy’s president, Herb Brail, in a press release.