Tribal Nations Urge Appeals Court to Uphold ICWA in Arizona Foster Care Case

Six Tribal Nations with children currently involved in dependency proceedings in Arizona state courts — the Fort McDowell Yavapai Nation, Gila River Indian Community, Navajo Nation, Pascua Yaqui Tribe, Salt River Pima-Maricopa Indian Community, and Tohono O’odham Nation — have filed an amicus curiae brief with the Arizona Court of Appeals, Division Two, supporting the appellants in In re Dependency as to M.K. The case centers on whether an Indian child’s bond with foster parents can outweigh the placement preferences required under the Indian Child Welfare Act (ICWA).

The brief, filed February 19, 2026, by the Native American Rights Fund, Rothstein Donatelli LLP, and the Indian Law Clinic at Michigan State University College of Law, urges the court to reverse a Cochise County Superior Court decision that found “good cause” to depart from ICWA’s placement preferences based on a child’s bond with foster parents.

In their filing, the Tribes underscore the long history of federal and state policies that led to the widespread removal of Indian children from their families in efforts to erase Tribal identity and culture. The brief outlines how, from the 1870s through the 1970s, practices such as boarding schools, forced assimilation, and high rates of adoption into non-Indian homes inflicted lasting trauma on generations of Native families. While some of these actions were presented as benefiting Native children, the brief stresses that they caused profound harm to children, their families, and their Nations. These historical injustices ultimately led Congress to pass ICWA in 1978 to protect Indian children, strengthen Tribal sovereignty, and preserve their connections to family, culture, and Tribal communities.

“Placing children with extended family first is one of the most important requirements in the Indian Child Welfare Act. Family placements are widely considered to be in the best interest of the child. Ordinary bonding in temporary foster care is expected to happen, and it is not good cause to keep a child from loving, willing relatives. Arguments otherwise are not supported by the science or the law,” explained NARF Senior Staff Attorney Sydney Tarzwell.

The brief also cites extensive medical, psychological, and child development research showing that children placed with relatives experience greater stability, fewer disruptions, improved long-term mental health outcomes, and stronger identity formation. These benefits are particularly critical for Indian children, who face heightened risks of trauma and long-term harm when separated from their cultural and familial networks. By contrast, research shows no clear link between disruptions in foster-care bonds and long-term negative outcomes, and warns that overreliance on bonding arguments risks undermining ICWA’s core purpose while incentivizing delays in placing children with preferred caregivers.

The Tribal Nations write, “This case presents a critical opportunity for the court to reaffirm that ICWA’s placement preferences are not suggestions — they are essential protections rooted in both federal law and decades of child-welfare research. Ordinary bonding with foster parents cannot justify denying an Indian child the right to grow up within his family, culture, and Tribal community.”

The Tribes further emphasize that M.K., the child at the center of the case, has extended family in Phoenix — with whom he already has a relationship — who are ready and able to care for him, support his cultural identity, and meet his developmental needs.

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