This lawsuit challenged the sections of the Oklahoma state ICWA statute (OICWA) concerning notice and intervention of tribes in voluntary proceedings. This case was first filed back in the summer of 2015. On March 31st, the Court agreed with Cherokee Nation’s most recent motion to dismiss as moot. All documents are here.
This means that of the federal lawsuits filed in the summer of 2015, only one currently survives (the sister suit to this one in Minnesota). It also means we have not received an adverse decision in any of them. This is great news, and a testament to the work of the tribal, federal, and state attorneys who had to defend against these suits.
However, it is also true that the Goldwater Institute has inserted itself into a growing number of state ICWA cases, and those cases are multiplying rapidly at the state level. The stated end goal of the Institute–to have ICWA found unconstitutional–remains, and they have not stopped working towards it.
We will be giving case status updates at both NICWA (Matt Newman, NARF) and the Federal Bar conference (Kate Fort) this year.
The ICWA Defense Project (NCAI, NARF, NICWA, and ICWA Appellate Project) has updated the memo detailing the various federal court challenges to ICWA.
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.
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.
Here is the complaint.
This case mirrors the ongoing Doe v. Jesson case (where Mille Lacs defeated the preliminary injunction, and we are currently waiting for a decision on summary judgment). Filed after we wrote the ICWA Legal Defense memo discussing the other three ongoing cases, this case involves a voluntary adoption, the Oklahoma state ICWA, and Cherokee Nation of Oklahoma. The arguments involve right to privacy, and due process and equal protection concerns.