National Council for Adoption Case Vacated and Remanded

This case was the challenge to the 2015 BIA ICWA Guidelines. The case was dismissed at the district court level, and NCFA appealed the case to the Fourth Circuit. Earlier this week, the appellants motioned to vacate, and today the court granted it. Given the BIA withdrew the 2015 Guidelines and they are no longer in effect, this makes sense.

Motion to Vacate

Order

This does mean the lower court decision is no longer precedent, to the extent we used it as such.

Updated ICWA Defense Project Memo

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.

ICWA Case Updates and Legal Clarifications

Because of the recent media attention to ICWA, here’s a quick update and clarification of some legal details:

ICWA has not been amended, updated, or changed. Ever. The same language that Congress passed in 1978 is the same language in effect today.

In 2015 the Bureau of Indian Affairs updated the ICWA Guidelines for State Courts for the first time since 1979. These non-binding Guidelines are considered persuasive by many states and are in effect now. State courts are using them in their decisions. The National Council for Adoption (NCFA) and Building Arizona Families (BAF) challenged the implementation of the 2015 Guidelines in the Eastern District of Virginia (E.D.Va) where they lost a motion to dismiss. However, they have filed an appeal in the Fourth Circuit, which is where the case currently sits.

Also in 2015, the Department of the Interior proposed federal regulations. Those regulations went through an intensive comment period (you can still read all of those comments here). The regulations have not yet been promulgated, which means the federal government has not released them pursuant to the Administrative Procedures Act–which means they do not currently exist. No one knows when they will be promulgated, or what they look like at this point. People (including us) speculate on when or if they will be promulgated before the end of the Administration, but we do not know. We do anticipate (speculate) there will be litigation over the regulations if/when they are.

Finally, the Goldwater litigation, which attracted a big splash of media attention when the complaint was filed in 2015, is on-going. Their goal is to have a court find that ICWA is a race-based law, meaning that the law would be subject to strict scrutiny in the federal courts (you can read a Wall Street Journal op-ed by the Goldwater attorneys discussing this here, but only if you want to and you probably don’t). This, of course, completely disregards long settled federal and state law (1) regarding tribes, tribal people, political status, and citizenship, which NICWA addresses perfectly at the end of an article here (and you can now disregard the reporter’s claim that ICWA has been amended because you’ve read this post and know that’s wrong). Along those lines, the plaintiffs in the Goldwater case just tried to add two new named plaintiffs, one of whom is not eligible for membership in any tribe. This has led to recent filings by both the federal and state governments named in this case asking the judge to dismiss. Both filings explain in detail why ICWA is not a race-based law.

(1) See, e.g., In the Interest of A.B., 663 N.W.2d 625, 636 (N.D. 2003); In re A.A., 176 P.3d 237, 240 (Kan. App. 2008); In re Adoption of Hannah S., 48 Cal. Rptr. 3d 605, 610-11 (Cal. Ct. App., 3rd. Dist. 2006); In re Interest of Phoenix L., 708 N.W.2d 786, 797-89 (Neb. 2006), rev’d on other grounds; Matter of M.K., 964 P.2d 241, 244 (Okla. Ct. App. 1998); In re Marcus S., 638 A.2d 1158, 1159 (Maine 1994); State ex rel. Children’s Services Div. v. Graves, 848 P.2d 133, 134 (Or. Ct. App. 1993); In re Miller, 451 N.W.2d 576, 579 (Mich. App. 1990); Matter of Appeal in Pima County Juvenile Action No. S-903, 635 P.2d 187, 193 (Ariz. Ct. App. 1981); Matter of Guardianship of D.L.L., 291 N.W.2d 278, 281 (S.D. 1980).

Law Review Article on Principal Briefs in Supreme Court Cases (Inc. Adoptive Couple v. Baby Girl)

Here.

Given the decision of NCFA to appeal the recent win in the Eastern District of Virginia to the Fourth Circuit this may be useful (if frustrating) reading.

As always, Adoptive Couple v. Baby Girl materials, including briefs, law review articles, and cases, are here.

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)

And:

…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.

Briefing Completed in Nat’l Council for Adoption v. Jewell (Guidelines Litigation) on Motion to Dismiss

Hearing on the matter is set for 11/13. Government’s Reply Brief here.

Even if BAF’s claims were not precluded by the Memorandum Opinion, however, they would fail in their own right. BAF does not have standing, either for itself or to assert the interests of unspecified birth parents, nor has it alleged any basis for this Court to conclude that its claims are ripe. If adoption proceedings are underway, then the Court should abstain from hearing the present suit or dismiss the declaratory relief as contrary to the Anti-Injunction Act. BAF cannot demonstrate that “legal consequences flow” from the Guidelines so as to render them reviewable because it concedes that Defendants do not enforce the Guidelines, and makes no argument that Defendants otherwise treat them as controlling. Nor does BAF cite any binding authority for the propositions that the Guidelines are race-based, that birth parents have a fundamental right to dictate the adoptive placement of their child, that ICWA exceeds the Indian Commerce Clause, or that non-binding Guidelines may commandeer state entities. For these reasons, and because they have not alleged a basis for relief under Bivens, Plaintiffs’ claims fail for lack of subject-matter jurisdiction and as a matter of law and must be dismissed.

Previous filings here. (documents 52, 56, 64, 67)

DOJ Prevails in Partial Motion for Summary Judgment in NCFA v. Jewell (Guidelines Litigation)

Order was issued on September 29th, but the Memorandum Opinion was issued today.

This Court DENIES Plaintiffs’ for Partial Summary Judgment because (1) Plaintiffs lack standing to challenge the 2015 Guidelines, (2) the 2015 Guidelines are not “final agency action” within the meaning of the APA because they do not create legal rights and obligations, and (3) the 2015 Guidelines are non-binding interpretive rules not subject to APA notice-and-comment procedures.

Previous filings are here.

DOJ Motion for Summary Judgment and National Orgs Amicus Brief Filed in Guidelines Litigation

Latest filings in Nat’l Council for Adoption v. Jewell:

DOJ Memorandum for Summary Judgment

A favorite footnote (5 is good too):

10 Finally, BAF does not elaborate as to why placement with an Indian child’s family or tribe could not also be “loving,” and its silence is telling. ICWA was designed as a remedy for precisely this type of bias: the stereotype held by some child-welfare advocates that Indian children will be better off placed with a non-Indian family. See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37 (reiterating that Congress feared that application of a “white, middleclass standard” will, “in many cases, foreclose[] placement with [an] Indian family”). BAF’s misguided view is, at best, an “abstract concern” that is insufficient to create standing. See Lane, 703 F.3d at 675 (citing Simon, 426 U.S. at 40).

National Organizations (NCAI, NICWA, AAIA) Amicus Brief in Support

Federal ICWA Litigation Documents

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.

ICWA Defense Project Memo on Recent Federal ICWA Cases

Here.

In February 2015, the Bureau of Indian Affairs (BIA) published its revisions to the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings. The new guidelines address areas of Indian Child Welfare Act (ICWA) non-compliance that have occurred over the past 36 years. In March 2015, the BIA announced its intent to advance further reform by proposing for the first time ever, legally binding federal regulations, Regulations for State Courts and Agencies in Indian Child Custody Proceedings, to govern the implementation of ICWA in state courts and agencies. The BIA received over 2,100 public comments during the notice and comment period that closed mid- May. The BIA will review these comments and then promulgate final regulations, likely by early spring 2016. A network of ICWA opponents has responded to the reforms by filing 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 Clinic 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 to it introduced this year. This memo will summarize the pending litigation and describe some of the legal and communications strategies these partner organizations have developed to inform, advance, and unify a coordinated effort across Indian Country to respond to these attacks.

Also, here is the NICWA Board Resolution and
talking points for conversations with state Attorneys General.