Doe v. Jesson

Doe v. Jesson Case (MN Federal ICWA Case) Dismissed as Moot

Kate Fort

Here is the opinion.

After two years, the Minnesota federal district court dismissed the voluntary adoption case challenging the provisions of the Minnesota Indian Family Preservation Act (MIFPA) allowing for notice and intervention of a child’s tribe in the proceedings. While the court states that the case presented Constitutional questions, the proceedings were moot and did not meet the standard for capable of repetition but evading review to keep the case live. There’s a nice discussion of that standard for practitioners who have been wondering how that might work in a child welfare case.

Plaintiffs have 30 days to file a notice of appeal if they so choose.

This is the last of the summer 2015 batch of federal ICWA challenges filed. All of them were ultimately dismissed. Carter v. Washburn is currently on appeal to the 9th Circuit.

Updated ICWA Defense Project Memo

Kate Fort2 Comments

The ICWA Defense Project (NCAI, NARF, NICWA, and ICWA Appellate Project) has updated the memo detailing the various federal court challenges to ICWA.

Here.

On February 25, 2015, the Bureau of Indian Affairs (BIA) published revisions to the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings. These revised Guidelines address areas of Indian Child Welfare Act (ICWA) non-compliance occurring over the past 36 years.

One month later, the BIA proposed to advance its reforms by proposing draft federal Regulations to govern the implementation of ICWA in state courts and agencies. On June 17, 2016, the BIA issued final Regulations for Indian Child Welfare Act Proceedings, as well as Frequently Asked Questions regarding the final rule. In addition, the U.S. Department of the Interior Solicitor issued a Memorandum describing BIA’s authority to issue the Regulations.

In response to the 2015 reforms, a network of ICWA opponents filed multiple lawsuits challenging the Guidelines and ICWA’s constitutionality. The National Indian Child Welfare Association (NICWA), the Native American Rights Fund (NARF), the National Congress of American Indians (NCAI), and the ICWA Appellate Project at Michigan State University College of Law—collectively known as the ICWA Defense Project—are working collaboratively to defend ICWA and the long overdue reforms.

This memorandum summarizes the pending litigation and describes some of the legal and communications strategies developed by these partner organizations to inform, advance, and unify a coordinated effort across Indian Country in response to these attacks.

Doe v. Jesson, now Piper, Partially Survives Motion to Dismiss

Kate Fort

Here. This is the federal case challenging the Minnesota Indian Family Preservation Act.

The Court finds that it has jurisdiction to hear the Does’ complaint, but only against the government defendants. The Court will dismiss Commissioner Moose from the case because he is a tribal officer and not a state officer; does not enforce MIFPA; and is not restricted by the constitutional clauses at issue here. But even though the Court may proceed to the merits of the Does’ complaint against the government defendants, the Court will not decide the merits now. The parties necessarily and understandably devoted nearly all of the briefs to the numerous preliminary issues. Although the jurisdictional questions were well briefed, the Does’ equal protection and due process claims received less attention than they deserved. Accordingly, in deciding these motions the Court will express no opinion on the merits – only on the preliminary matters. It may be that Defendants’ positions on the merits are correct – or incorrect – but those questions will be decided another day.

Federal ICWA Litigation Documents

Kate Fort1 Comment

We don’t post every time a document is filed in the current federal ICWA cases (EDVA, AZ, MN, NDOK), but will be posting updates as orders are filed or briefing is completed on an issue, as usual.

However, many filings for all four cases are being updated regularly here.

Federal Court Denies Preliminary Injunction in Challenge to Minnesota’s Indian Child Welfare Statute

Matthew L.M. Fletcher

Here is the order in Doe v. Jesson (D. Minn.):

42 DCT Order Denying PI

Pleadings TK:

State_Memorandum_ResponsePrelimInjuc

MilleLacs_Memorandum_ResponsePrelimInjunc

MilleLacs_MotiontoDismiss

State_Memorandum_MotiontoDismiss

State_Response_AnonymousParty

We posted the complaint here.

Constitutional Challenge to Parts of Minnesota Indian Family Preservation Act

Matthew L.M. Fletcher1 Comment

Here is the complaint in Doe v. Jesson (D. Minn.):

1 Complaint

An excerpt:

25. MIFPA defines an “Indian child” as “an unmarried person who is under age 18 and is: (1) a  member of an Indian tribe; or (2) eligible for membership in an Indian tribe.” Minn. Stat. 260.755, subd. 8. By contrast, ICWA defines an Indian child as either “(a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member ofan Indian tribe.” 25 U.S.C. 1903(4) (emphasis added).

26. Many Indian tribes have only blood quantum or lineage requirements as prerequisites for membership. See, e.g., Paul Spruhan, The Origins, Current Status, & Future Prospects ofBlood Quantum as the Definition ofMembership in the Navajo Nation, 8 Tribal L.J. 1, 5 (2007); see also Rev. Const. & Bylaws of the Minnesota Chippewa Tribe, Minnesota, art. II, 1(c) (child eligible ifborn to a member and child is at least one quarter Minnesota Chippewa Indian blood). The Mille Lacs Band of Ojibwe is a member of the Minnesota Chippewa Tribe. Id. at art. III.

27. Unlike ICWA, the Minnesota Indian Family Preservation Act, facially and as applied, gives Indian tribes the right under the color of state law to interfere with voluntary, private adoptions.