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.
The 2013 Supreme Court decision Adoptive Couple v. Baby Girl placed the Indian Child Welfare Act (ICWA) in the public spotlight. In that case, the Court held that a noncustodial father does not have certain rights under ICWA. The Baby Girl decision motivated many interest groups, including tribal governments, non-Native child welfare organizations, and adoption and foster care advocates to closely examine ICWA issues at every level, from national policy to local implementation.
After Baby Girl, Indian Country exerted tremendous effort to have the Bureau of Indian Affairs (BIA) reexamine its historical antipathy for ICWA enforcement. This process began with informal ICWA listening sessions hosted by the BIA and culminated in the publication of updated 2016 ICWA regulations and guidelines.1
While Indian Country celebrated the BIA’s actions, ICWA opponents mobilized a detailed and strategic legal campaign to reverse this progress and dismantle foundational precedents and statutes. If ICWA’s protections are eroded or eliminated, many who work in child welfare believe these issues will become more troublesome.
Since 2015, these legal challenges have come in one of three waves. The first wave consisted of federal lawsuits attacking ICWA as an unconstitutional statute that violates individual due process and equal protection rights and exceeds Congress’s authority over Indian affairs. The second wave is comprised of federal lawsuits challenging state laws that implement and expand ICWA provisions. Finally, the third wave arises from state appellate cases that have drawn significant attention and may reach the U.S. Supreme Court.
Wave I – Federal Challenges to the Statute
National Council for Adoption v. Jewell
The National Council for Adoption (NCFA) filed the first legal challenge against the BIA’s ICWA reforms in May 2015. Styled as an Administrative Procedures Act (APA) suit, the complaint included claims that: (1) ICWA denies Indian children due process and equal protection by subjecting their dependency cases to its provisions; (2) ICWA and the federal guidelines commandeer state agencies for federal purposes; and (3) ICWA exceeds Congress’s authority to legislate in the area of Indian affairs. NCFA’s position focused extensively on arguing that the guidelines carried the weight of a legislative rule, and as such, required formal notice of rulemaking and public comment. Specifically, NCFA highlighted the guidelines’ use of words such as “require,” “must,” and “shall” as indicators that the BIA intended the guidelines to be binding, legislative rules.2
In response, the BIA raised several jurisdictional and legal defenses, including lack of standing. The BIA also disputed NCFA’s characterization of the guidelines as legislative rules. To dispute the constitutional claims, the BIA relied on U.S. Supreme Court and federal circuit precedents holding that laws pertaining to tribes and tribal members are not “racial in nature,” but rather derive from tribes’ political status as “distinct, independent communities” under the Constitution.
The district court agreed with the BIA’s arguments and dismissed the case. Specifically, the court held that NCFA lacked standing because it failed to demonstrate any cognizable injury from the guidelines. The court also held that the guidelines are not “final agency action” subject to judicial review because the BIA published the guidelines as nonbinding “advisory guidance” that allows state court judges to be the ultimate decision makers. The court dismissed the remainder of the claims for lack of subject matter jurisdiction and cited the long line of federal court precedent upholding tribal citizenship as a political, rather than racial, classification.3 NCFA appealed the district court’s decision to the Fourth Circuit Court of Appeals in February 2016. Briefs have not been filed yet and the appeal remains pending.
Carter v. Washburn
In July 2015, plaintiffs represented by the nonprofit Goldwater Institute filed a class action lawsuit against the BIA and the state of Arizona challenging various provisions of state and federal law as they applied to Indian child welfare proceedings. The proposed class of plaintiffs includes all Native children in the Arizona foster care system who reside outside a reservation as well as all foster parents, preadoptive, and prospective adoptive parents who are not members of the Native child’s extended family.
The suit challenges ICWA’s provisions on transfer, active efforts, burdens of proof for removal, burdens of proof for termination of parental rights, and placement preferences, as well as corresponding sections in the revised guidelines, and an Arizona law requiring the state Department of Child Safety to “ensure compliance with ICWA.”
The Gila River Indian Community and the Navajo Nation each intervened in the suit on the grounds that four of the named child-plaintiffs were citizens of the two tribes. The BIA filed a motion to dismiss the suit on grounds similar to those in National Council for Adoption v. Jewell: (1) plaintiffs lack standing, and (2) plaintiffs failed to state a claim upon which relief could be granted. The case remains pending before the district court.
Wave II – Federal Challenges to State Laws
Doe v. Piper
In June 2015, the birth parents of an Indian child filed a federal suit in Minnesota challenging the constitutionality of the Minnesota Indian Family Preservation Act (MIFPA). Plaintiffs challenged MIFPA’s provisions (1) requiring notice to tribes in cases of voluntary adoptions and (2) guaranteeing a tribe’s right to intervene in voluntary adoptions. The plaintiffs argued that these provisions violate the birth parents’ due process right to parent their child and direct their child’s upbringing, and that the provisions discriminated against their child based on race.
Plaintiffs sought to preliminarily and permanently enjoin MIFPA’s application to their child’s voluntary adoption proceeding in state court. Plaintiffs named as defendants various state officials charged with administering MIFPA, as well the Commissioner of Health and Human Services for the Mille Lacs Band of Ojibwe, in which the birth mother was an enrolled citizen.
Tribal and state attorneys successfully defeated the preliminary injunction. Soon after, the tribe and the state filed separate motions to dismiss. The district court granted the tribe’s motion and dismissed all claims levied against it on the basis the tribe enjoyed sovereign immunity from suit. The court also removed the health commissioner as a defendant. The court allowed the case to continue against the state government officials, however, because the court agreed with the plaintiffs’ claim they faced irreparable harm because of the requirement to notify the tribe. Finally, even with the health commission’s promise that the tribe would not intervene in this matter, the court found this issue was not moot because it had both the potential to reoccur and not be resolved timely. The case is awaiting trial on the constitutional issues.
Doe v. Pruitt
In a nearly identical case to Doe v. Piper, an Oklahoma couple, birth parents of an Indian child eligible for membership in the Cherokee Nation, filed a federal lawsuit challenging the constitutionality of the Oklahoma Indian Child Welfare Act (OICWA). Like Doe v. Piper, plaintiffs’ federal lawsuit specifically targeted the OICWA provisions requiring notice to tribes in cases of voluntary adoption, and guaranteeing a tribe’s right to intervene in voluntary adoptions. Additionally, plaintiffs incorporated certain arguments from the National Council for Adoption v. Jewell suit; specifically, that OICWA was beyond the scope of the legislative powers the federal Constitution conferred to states.
The state and tribal attorneys filed respective motions to dismiss the suit, arguing plaintiffs lacked standing to bring the suit and failed to properly state a claim upon which relief could be granted. Although the district court held oral argument on the motions to dismiss in January 2016, it has not issued a decision in the case.
C.E.S. v. Nelson
In September 2015, foster parents of children enrolled in the Grand Traverse Band of Ottawa and Chippewa Indians sought and received from Michigan federal court an ex parte temporary restraining order against a tribal prosecutor, a tribal social worker, and a state court judge, all of whom were involved in the children’s state court dependency case. During those state proceedings, the tribe sought, and the judge granted, a motion to transfer the children’s case to the tribal court for further proceedings. The federal restraining order prevented any further state proceedings regarding the placement of the children to occur. Like many of the plaintiffs in the Wave One cases, the Michigan plaintiffs claimed certain MIFPA provisions violated their individual constitutional rights; specifically that transferring the case to tribal court violated the children’s due process rights and discriminated against the children based on their race.
The tribe defeated the preliminary injunction, and later filed a motion to dismiss citing tribal sovereign immunity as plaintiffs named tribal officials as defendants in the suit. Before the district court could rule on the motion, the parties stipulated to voluntarily dismiss the suit without prejudice. The children’s dependency case was transferred to tribal court where adoption proceedings are continuing.
Wave III and Beyond
In addition to the federal cases currently in litigation, there have been a number of state appellate cases that have attracted heightened interest.
The Washington Supreme Court strongly upheld ICWA and the principles behind it despite claims from the appellant and amici regarding ICWA’s constitutionality. See In re T.A.W., 383 P.3d 492 (Wash. 2016).
In Arizona, the Court of Appeals decided a case on statutory language, rather than on the broad constitutionality of the law, even though it was invited to do so by appellees and amici. See Gila River Indian Community v. Dep’t of Child Safety, 379 P.3d 1016 (Ariz. Ct. App. 2016).
The California Court of Appeals also recently upheld both state and federal laws concerning the placement of a Choctaw child with her extended family, even under intense media scrutiny and multiple appeals. See In re Alexandria P., 204 Cal. Rptr. 3d 617 (Ct. App. 2016).
It is likely that one of these cases will head to the U.S. Supreme Court. The foster parents in the California case have filed a petition for certiorari after the California Supreme Court denied review of the case. Depending on the decisions in lower federal courts, it appears inevitable that at least one party will seek review from the nation’s highest court. The possibility of a split in the circuits has increased considerably in the past year. The future of the lawsuits is unclear, but it is to be expected that Indian Country will continue to fight for enforcement of ICWA and the newest guidelines and regulations.
Matthew Newman is a staff attorney in the Native American Rights Fund’s Anchorage, Alaska office where he works in the areas of the Indian Child Welfare Act, tribal court jurisdiction, and tribal natural resources. He is admitted to practice law in Montana and Alaska, and the federal District of Alaska, the Ninth, Fourth, and D.C. Circuit Court of Appeals.
Kathryn E. Fort is the director of the Indian Law Clinic at Michigan State University College of Law where she also runs the ICWA Appellate Project, which assists tribes with ICWA appeals. She also co-edits the popular Indian law blog, Turtle Talk. Her work is available at https://papers.ssrn.com/sol3/results.cfm
2. Court documents for this case can be found at turtletalk.wordpress.com/fort/icwa/national-council-for-adoption-v-washburn. Plaintiff’s Complaint at 21-22.
3. Id. at 11-13.