DOJ Wins Motion to Dismiss in NCFA v. Jewell (2015 Guidelines Litigation)

This is a big win–the Judge dismissed all claims, including the equal protection and substantive due process ones. In addition, there’s good language for the eventual ICWA regulations.

Here is the order.

This Court GRANTS Defendants’ Motion to Dismiss For Lack of Subject-Matter Jurisdiction and for Judgement on the Pleadings because: (1) Plaintiffs’ claims are precluded by this Court’s October 20, 2015 Memorandum Opinion in which the Court held that Plaintiffs lack standing to challenge the Guidelines, that the Guidelines are not justiciable as a “final agency action,” and that the Guidelines are non-binding interpretive rules; (2) BAF has not demonstrated any authority to support its equal protection, due process, or Indian Commerce Clause claims; (3) the 2015 Guidelines do not commandeer state entities; and (4) BAF has failed to plead a Bivens action.

(emphasis added)


…even if the 2015 Guidelines were legislative rules, rather than interpretive guidelines that do not mandate state court compliance, the 2015 Guidelines still would not commandeer state entities to comply with its regulations… Just as Congress may pass laws enforceable in state courts, Congress may direct state judges to enforce those laws.

As a personal side note, there so many great people who have worked on this litigation since it was filed in May, and they all deserve thanks.

4 thoughts on “DOJ Wins Motion to Dismiss in NCFA v. Jewell (2015 Guidelines Litigation)

  1. Lori Nelson December 11, 2015 / 12:38 am

    So, this is a win for Indian country? I’m not getting it. My legalese is rusty. Thanks.

  2. ilpc December 11, 2015 / 10:10 am

    Two adoption groups and a few individuals sued the BIA claiming the 2015 ICWA Guidelines were not put forth according to the law, that they were unconstitutional, and that provisions of ICWA were unconstitutional. DOJ had to defend ICWA and the Guidelines. To do so, they filed a motion to dismiss all claims, and yesterday the judge agreed with DOJ and dismissed the complaint. National Native organizations (NICWA, NCAI, AAIA) filed an amicus brief on the side of DOJ. This is a win for those who support ICWA and its protections for Indian children.

  3. Ann Reading December 11, 2015 / 1:12 pm


Comments are closed.