ICWA Cases Update

Since the BIA indicated its intention to publish new regulations regarding the Indian Child Welfare Act (ICWA), there have been at least five lawsuits filed challenging various aspects of the federal Indian Child Welfare Act (ICWA), state versions of that law, or the new BIA Guidelines upon which the proposed regulations are based.  I previously commented on two of them.  I have been too busy to stay entirely up-to-date on all of these cases since, but some basic information and links regarding them are below.

One of the best ways to keep up with what is going on is to follow the blogging of Kate Fort on Turtle Talk.  Ms. Fort is a law professor at Michigan State University where the ICWA Appellate Clinic is assisting with the response to most of these cases.  This October 19 Memo by the ICWA Defense Project provides a quick update on the cases, and many filings from the cases are available on this Turtle Talk page.  My brief description of each case is below.

1) NATIONAL COUNCIL FOR ADOPTION v. JEWELL

  • Filed May 27, 2015 in federal court in the Eastern District of Virginia.
  • Challenges the new guidelines and some parts of ICWA itself.
  • The claims in the Complaint of D.V., N.L., T.W., and Philip (Jay) McCarthy were dismissed without prejudice by stipulation.  No other significant rulings yet.

2) DOE v. JESSON

  • Filed June 3, 2015 in federal court in the District of Minnesota.
  • Challenges the version of ICWA enacted in Minnesota STATE law, particularly as it relates to notice in a voluntary adoption.
  • The Court denied the request for a preliminary injunction for two reasons.  It found that the Minnesota ICWA allowed for the parents to remain anonymous as part of their notice, and (2) the Tribe pledged not to intervene in the adoption.  In light of these facts and rulings, I would not be surprised if the case was eventually dismissed.

3) CARTER ET AL v. WASHBURN

  • Filed July 7, 2015 in federal court in the District of Arizona.
  • Challenges the New Guidelines and some aspects of the ICWA.
  • This suit is backed by the Goldwater Institute, so it is a relatively well-funded and well-planned attack on the New Guidelines and parts of ICWA.
  • No significant rulings yet.
  • Rather ironically, much of the argument put forth in the Federal Defendants’ Motion to Dismiss is essentially that the New Guidelines are not binding and state courts don’t have to follow them.  Many of the citations are to state court cases that proponents of the New Guidelines believe the state courts got wrong.

4) DOE v. PRUIT

  •  Filed August 18, 2015 in federal court in the Northern District of Oklahoma.
  • Challenges the version of ICWA enacted in Oklahoma STATE law, particularly as it relates to notice to tribes in a voluntary adoption.
  • No significant rulings yet.

5) C.E.S. v. NELSON

  • Filed in federal Court in the Western District of Michigan on September 29.
  • Challenges the version ICWA enacted in Michigan STATE law, particularly the extra limitations in the state law regarding declining to transfer a case to tribal court.
  • The federal case is the latest in a string of litigation.  The Michigan Court of Appeals had just determined that the best interests of the child is not factor that can be considered when deciding whether to transfer and ordered that the case be transferred.
  • The Plaintiffs received an immediate ex parte temporary restraining order preventing the transfer of their adoption case to tribal court.  The Court will consider the case again tomorrow (October 21, 2015) and weigh whether to issue a preliminary injunction.

Below are a few of my very quick thoughts:

  1. I don’t think the actual federal ICWA statute is in much danger.  However, aspects of the aggressive interpretation of that statute preferred by many tribes, and being pushed by the current administration at the BIA, are much more vulnerable.
  2. The key issues in both Minnesota and Oklahoma cases previously mentioned is the rights of tribes to be notified of an involved in voluntary adoption proceedings.  The state laws at issue reflect the interpretation of the federal ICWA from the proposed regulations.  These are cases where the interests of the Tribe are in direct conflict with the interests of the members of the Tribe (biological parents).
  3. One issue that is lurking but is not directly being litigated right now is to what extent Tribes can assert their influence over members who want nothing to do with the Tribe.  Many people are enrolled as children rather than by choice as adults.  Additionally, many tribes (e.g. the Cherokee) are making any lineal decedent of a member eligible for membership, meaning people who are less than 1% genetically Indian can be members.  In the Oklahoma case above, at least one parent was not even aware that she was a tribal member until it screwed up her preferred voluntary adoptive placement.  It is clear the biological parents in that case want nothing to do with the Tribe.  In another Oklahoma case, the biological father tried to revoke the tribal membership of himself and his child to avoid the application of ICWA, but the case was decided on other grounds when the Oklahoma Supreme Court decided to disregard the New Guidelines.  (In re M.K.T., C.D.T., and S.A.W.).