February 01, 2016

Federal Judge Dismisses Suit Challenging Constitutionality of ICWA and New Federal Guidelines

Eva J. Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

National Council for Adoption v. Jewell, Case No. 1:15-cv-675-GBL-MSN (E.D. Va. 2015).

Suit challenging the constitutionality of the Indian Child Welfare Act and 2015 federal Guidelines implemented by the Bureau of Indian Affairs was dismissed by a federal court judge in the Eastern District of Virginia, citing a lack of subject matter jurisdiction and standing in the case.

The National Council for Adoption (NCFA), Building Arizona Families (BAF), and an infant boy through his guardian ad litem filed suit against Secretary of the Interior Sally Jewell, Assistant Secretary–Indian Affairs Kevin K. Washburn, and the Department of the Interior. The suit claimed the Indian Child Welfare Act (ICWA) “violates the birth parents’ rights to due process under the Fifth Amendment by interfering with their ability to direct the upbringing of their ‘Indian’ children.” The plaintiffs felt birth-parents’ adoption placement options were limited by the 2015 Guidelines, which seek to implement ICWA’s hierarchy of placement preferences for children classified as “Indian children.” For various reasons, only BAF’s claims remained before the court.

The defendants moved for dismissal based on lack of subject matter jurisdiction and failure to state a claim because the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (Guidelines) are a nonbinding and nonfinal agency action.

The district court granted defendants’ motion on four bases. First, plaintiffs’ claims are precluded by a previous opinion holding that they lack standing to challenge the Guidelines, the Guidelines are not a “final agency action,” and the Guidelines are nonbinding interpretive rules. Second, BAF did not provide authority to support its equal protection, due process, or Indian Commerce Clause claims. Third, the 2015 Guidelines do not commandeer state entities. And fourth, BAF failed to plead a Bivens action, i.e., that a government official established a policy that was unconstitutional and caused the plaintiff to be injured.

The ruling is significant not only because the court ruled on the motion and even addressed the underlying merits of the case had the plaintiffs’ claims survived, but also because similar cases have been filed in other federal circuits. This ruling may indicate how other circuits will address the claims.