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Groups challenging Indian Child Welfare Act lose round in court

Thursday, October 22, 2015

Indian children in South Dakota. Photo from Lakota People's Law Project

A federal judge has dealt an early setback to groups that are challenging efforts to strengthen the Indian Child Welfare Act.

Congress passed ICWA in 1978 to prevent the removal of Indian children from Indian homes. But compliance has been uneven so the BIA in February issued guidance aimed at helping state courts and state agencies meet the goals of the law.

Non-Indian adoption groups, though, weren't happy with the guidelines even though they do not carry the full weight of a formal regulation. They sued the BIA in May, accusing the agency of taking action without seeking input from the public.

Judge Gerald Bruce Lee, however, rejected an attempt by the National Council for Adoption and the Building Arizona Families Adoption Agency to invalidate the new guidance. He noted that the document does not constitute a "final agency action" that can be challenged in court.

Cherokee Nation Chief Bill John Baker discusses an Indian Child Welfare Act case that went before the U.S. Supreme Court in 2013. Dusten Brown, in sunglasses, was forced to give up his daughter after the justices ruled against him. Photo from National Congress of American Indians / Flickr

Lee also determined the groups lacked standing altogether. As part of comments submitted to the agency regarding a permanent ICWA rule, they already admitted that the guidelines are completely voluntary, he said.

"The 2015 guidelines are merely interpretive in nature and impose no obligation unless and until a state court requires compliance with their provisions," Lee wrote in the 17-page decision on Tuesday.

Although the ruling does not end the case, the standing issue poses a significant problem going forward. Without a judicially-recognized connection to challenge the BIA, the groups face an outright dismissal of their lawsuit.

ICWA, however, remains under attack. Emboldened by the U.S. Supreme Court decision in Adoptive Couple v. Baby Girl, non-Indians are trying to outright invalidate the law, or at least undermine it, through a series of lawsuits. One conservative organization claims the law is unconstitutional because it only applies to children based on their racial heritage.

Assistant Secretary Kevin Washburn addresses the National Congress of American Indians annual convention in San Diego, California, on October 19, 2015. Photo by Indianz.Com

The BIA also faces opposition to an ICWA rule that would carry the force of law unlike the guidelines. Over 1,800 comments were submitted by the May 18 deadline, according to the docket on regulations.gov.

"It is in the best interest of children not to be stolen from their tribal communities," Washburn said on Monday at the National Congress of American Indians annual convention in San Diego, California. "I think that's just a fundamental principle."

Pointing to media coverage in publications like the Wall Street Journal, opposition groups are well-funded, Washburn said at NCAI. With slick websites and high-profile lawsuits, tribal advocates believe the law faces serious hurdles in the coming years.

"Indian country lost Adoptive Couple v. Baby Girl because the adoption industry won the PR battle before Indian country even noticed. It’s time to act," professor Kathryn E. Fort wrote on Turtle Talk in July after the conservative Goldwater Institute of Arizona filed a class action against ICWA.

Even though ICWA has been on the books for 35 years, Indian children are still overrepresented in the child welfare system. In South Dakota, for example, 51 percent of children in the foster care system are American Indian or Alaska Native even though Native Americans represent just about 9 percent of the state population.

Turtle Talk has posted documents from the case being handled by Judge Gerald Bruce Lee in Virginia, NCFA v. Jewell. Additional documents from other ICWA cases can also be found on Turtle Talk.

Federal Register Notices:
Regulations for State Courts and Agencies in Indian Child Custody Proceedings (March 30, 2015)
Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (February 25, 2015