This is the long running (initiated before Adoptive Couple v. Baby Girl) case that is attempting to address the due process and ICWA violations against Native families in Pennington Co., South Dakota. Brought by Oglala Sioux, Rosebud Sioux and two individual tribal citizen mothers on behalf of a class of similarly situated parents, this case has highlighted the disturbing practices of the county (which, even more disturbingly, are not that surprising to trial level practitioners in our child welfare system). The District Court had found for the plaintiffs at each stage, and found specifically that abstention/Younger doctrine did not a apply to this case. The Eighth Circuit found differently.
Setting aside the due process claims for the sake of this point, ICWA itself creates a right of action under 25 USC 1914 (a parent, custodian, or tribe may petition a court of competent jurisdiction to invalidate any cases in violation of 1911 [jurisdiction], 1912 [notice/active efforts/burden of proof], or 1913 [voluntary proceedings]). This right, however, has often been limited by federal courts under abstention doctrines, which means the state courts that are causing the abuses of the law are the only places to address the abuses of the law. As the Court states, “Although the plaintiffs complain that state court proceedings do not afford parents an adequate opportunity to raise broad constitutional challenges under the Due Process Clause, they have not established that South Dakota courts are unwilling or unable to adjudicate their federal claims.” There are a number of federal cases on ICWA–that is, ones that are attempting to demonstrate a violation of the law–that end up with a hollow 1914. See Yancey v. Bonner, 2008 WL 4279760 (W.D. Okla. 2008), Navajo Nation v. LDS Family Services, 2006 WL 3692662 (D. Utah 2006), Kickapoo Tribe of Oklahoma v. Rader, 822 F.2d 1493 (10th Cir. 1987)
I’d also note while the Court said “[t]he relief requested would interfere with the state judicial proceedings by requiring the defendants to comply with numerous procedural requirements at future 48-hour hearings,” those procedural requirements are ones required by both the Constitution and the Indian Child Welfare Act.
The ICWA Appellate Project filed an amicus brief on behalf of the Navajo Nation, Cherokee Nation, the ICWA Law Center, NICWA and NCAI in this case.